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Bava Basra, 128

BAVA BASRA 126-128 - have been generously dedicated by Dick and Beverly Horowitz of Los Angeles, California. May they be blessed with a life of joy and much Nachas from their children and grandchildren.


OPINIONS: The Gemara discusses various cases of a person who saw an event but then became disqualified from testifying, such as a person who became mute. Does this imply that a person who can hear but cannot speak is disqualified from testifying?
(a) The RASHBAM (DH v'Nischaresh) maintains that a person who can hear but cannot speak is not intrinsically disqualified from being a witness. Rather, a technical problem prevents him from testifying. His only method of testifying would be through writing, and since written testimony is not valid, it is not possible for him to testify.

(b) The ROSH (8:24) writes that such a person is disqualified from testimony because the verse states with regard to witnesses, "Im Lo Yagid" -- "if he does not say [the testimony]" (Vayikra 5:1), which implies that there is a requirement that the witness be able to verbally express the testimony.

The KETZOS HA'CHOSHEN (46:19) writes that one who cannot speak may not serve as a witness to sign a Shtar, even though no verbal testimony is necessary. Such a person is disqualified from all forms of testimony. This is consistent with the opinion of the Rosh. The Rashbam, however, would permit the signature of such a person on a Shtar, as the DIVREI MISHPAT points out. Since the Rashbam holds that a person who cannot speak is essentially a valid witness but he cannot testify in a normal case because his written testimony is not accepted; however, in a case where written testimony is valid (such as a Shtar), he will be a valid witness.

RAV REUVEN GROZOFSKY (Yevamos 28:3) suggests that it is possible that even the Rosh would accept the a mute person's signature on a Shtar. He explains that there are two ways to explain why written testimony is not accepted. The first way of explaining is that writing does not have the legal status of speaking. The second way of explaining is that although writing does have the legal status of speaking (and thus when the witness signs it is as if he is speaking), nevertheless written testimony cannot be accepted because the court must hear testimony from the witness and not just be aware of testimony that took place at a different time (such as when the witness signed the Shtar). If the second approach is correct, then the reason why a Shtar is acceptable in court is because it is considered to be testimony that was already accepted and verified by Beis Din at the time that it was signed. Consequently, even though a person who is mute is disqualified from testifying in person because he cannot convey his testimony orally, his signature on a Shtar is accepted. His signature attesting to what is written in the Shtar is considered to be testimony through speech, and such testimony suffices in the case of a Shtar. (Y. Marcus)


QUESTION: Rebbi Aba sent to Rav Yosef his ruling in a case in which a lender demands the repayment of a loan from the borrower, and he presents a Shtar that attests to the loan. The borrower claims that he already paid back half of the loan. Witnesses later come and testify that the borrower paid back the entire loan.

Rebbi Aba (according to the explanation of most Rishonim) ruled that the borrower must make a Shevu'ah of Modeh b'Miktzas in order to exempt himself from paying the half of the loan that he denies that he owes. The other part of the loan (which the borrower admits that he owes, but which the witnesses say that he paid back) may be collected by the lender, but only from Nechasim Benei Chorin and not from Nechasim Meshu'abadim (land which the borrower owned at the time that he took the loan and which he later sold to Lekuchos). Since the witnesses say that the borrower already paid back the entire loan, the Lekuchos who bought his land can claim that they are relying on the testimony of the witnesses.

This ruling seems difficult to understand. If we rely on the witnesses such that the lender may not collect the loan from Nechasim Meshu'abadim, then why does the borrower need to make a Shevu'ah on the part of the loan that he says he already paid? Whenever a person is Modeh b'Miktzas, admitting that he owes part of the claim and claiming that he paid back the other part, and he has witnesses who support his claim that he paid back the other part, he does *not* have to make a Shevu'ah! If, on the other hand, we disregard the witnesses because the borrower himself contradicts them (and we accept the borrower's word, since he is believed, with regard to obligating himself, to contradict the testimony of witnesses), why, then, is he believed with a Shevu'ah to say that he paid back half of the loan? The lender is holding a valid Shtar that says that he owes the entire loan (and the Shevu'ah of Modeh b'Miktzas applies only when there is no Shtar)! (RA'AVAD cited by RASHBA, RITVA)


(a) The RA'AVAD answers that the case of our Gemara is when the borrower states only, "I paid back half," and he does *not* say, "I paid back half *and not more*" (see, however, RASHBAM in DH v'Loveh Amar). Since he says nothing about the other half of the loan, it could be that he means that he does not remember whether he paid it back or not. Perhaps he is saying that he is certain that he paid back half of the loan, but he does not remember whether he paid back the other half. The witnesses come and say that they remember that he paid back all of the loan. Accordingly, the borrower is not contradicting the witnesses (and thus he should be exempt from paying anything, even without a Shevu'ah).

However, perhaps this is not his intention when he says that he paid back half, but rather he means that he *only* paid back half and not more.

Since there is a doubt whether he is in agreement with the witnesses or whether he is contradicting them, we rule stringently with regard to himself and say that he is contradicting the witnesses and we disregard their testimony. However, we accept their testimony with regard to weakening the strength of the Shtar against him, and thus we treat this like a normal case of Modeh b'Miktzas and require the borrower to make a Shevu'ah in order to be exempt from paying half.

On the other hand, with regard to the people who bought his land, we say that he is *not* contradicting the witnesses and we accept their testimony. Therefore, the lender cannot collect from Nechasim Meshu'abadim.

(b) The RAMAH and RABEINU YONAH explain that, in essence, we accept the testimony of the witnesses (and therefore the lender cannot collect from the Nechasim Meshu'abadim from the Lekuchos). Even though, according to the borrower's words, the witnesses are not telling the truth (and thus we should not exempt him at all since there is a Shtar against him), we accept his claim with a Shevu'ah because he has a Migu that he could have said that he paid back everything. He would have been believed because there are witnesses who support that claim. (The Migu does not exempt him from the Shevu'ah, though, because of the general rule that a Migu cannot exempt a person from a Shevu'ah.)

(c) Others (see ME'IRI) explain that the testimony of the witnesses (who say that he paid) is able to nullify the power of the Shtar (who says that he did not pay). However, the testimony of the borrower himself cancels the testimony of the witnesses. Consequently, the claim against him (that he owes the entire amount) is upheld only because of his own admission. Therefore, he is believed with a Shevu'ah of Modeh b'Miktzas to exempt himself from the half that he denies, while we do not accept his word to obligate the Lekuchos.

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