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Bava Basra 165



(a) According to Raban Shimon ben Gamliel in our Mishnah, Sh'tar Mekushar is tied up with local Minhag. Does this mean, we ask - that the Tana Kama does not follow Minhag ha'Medinah?

(b) Abaye answers the Kashya. He says that, in a case where the Minhag is to write a Pashut, and the man asked the Sofer to write him a Pashut, but he wrote him a Mekushar, or where the Minhag is to write a Mekushar, and the man asked the Sofer to write him a Mekushar, and he wrote him a Pashut - the Sh'tar is Pasul, because he wanted the Sofer to comply strictly with his instructions, to conform with Minhag ha'Medinah.

(c) If, without any instructions, the Sofer wrote a Pashut in a place where the Mnhag was to write a Mekushar or vice-versa - it seems from our Sugya that the Sh'tar would be Kasher, despite the Minhag ha'Medinah (see Tosfos DH be'Asra').

(a) The Tana Kama and Raban Shimon ben Gamliel argue in a case - where the Minhag is to write either, and the man instructed the Sofer to write him a Pashut, but he wrote him a Mekushar.


1. Raban Shimon ben Gamliel maintains that, since either way conforms with Minhag ha'Medinah, the Sh'tar is Kasher, because 'Mar'eh Makom Hu Lo', he was merely offering him the opportunity to write a Sh'tar Pashut if he found a Mekushar to complicated (though he would have preferred a Sh'tar Mekushar).
2. According to the Tana Kama, he intended him to strictly comply with his instructions, in spite of the fact that either way would conform with Minhag ha'Medinah. Note, that according to the above explanation, if he were to ask the Sofer to write him a Mekushar, and he wrote a Pashut, Raban Shimon ben Gamliel may well concede that the Sh'tar is Pasul (though this is not the opinion of the Rosh in Si'man 5).
1. Rebbi Shimon says in the Mishnah in Kidushin, where a man betrothed a woman for a silver Dinar, and the Dinar that he subsequently gave her turned out to be gold - that, since he 'tricked' her to her benefit, she is Mekudeshes (seeing as, when she asked her Sheli'ach to accept a silver Dinar [as we establish the case there], it was a matter of 'Mar'eh Makom Hi Lo, as if to say even a silver Dinar will do, but certainly a golden one.
2. ... Rebbi Elazar says in the Mishnah in Gitin where a woman instructed her Sheli'ach to receive her Get in a certain place, and he received it elsewhere - that she is divorced, because 'Mar'eh Makom hi Lo'.
(d) Abaye quotes these two Tana'im in our Sugya - because, like Raban Shimon ben Gamliel, they hold 'Mar'eh Makom hu Lo'.
(a) We can understand why our Mishnah needs to teach us 'Mekushar she'Kasuv Bo Shenayim, Pasul' in our Mishnah. It needs to teach us 'Pashut she'Kasuv Bo Eid Echad, Pasul' (which appears to be obvious) - in a case where there is also one oral witness, to teach us that the two witnesses do not combine.

(b) Ameimar said - that if one witness testified in writing, and the second witness, orally, the testimony is valid.

(c) From the Lashon 'Achshar' (S'tam), it would appear that the creditor may even claim from the Lekuchos in such a case (and not just from the debtor directly), because the witness in the Sh'tar, aided by the oral witness, produce a Kol (though this ruling is not unanymous).

(a) Ameimar makes no attempt at reconciling his current ruling with Abaye's interpretation of our Mishnah - because he disagrees with him.

(b) He therefore explains the Tana's insertion of the Din of a Get Pashut that is signed by only one witness in our Mishnah (not for its own Chidush, but) - to teach us that two witnesses by a Mekushar are Pasul with the same severity as one witness by a Sh'tar Pashut (which is a P'sul d'Oraysa).

(c) We know that one witness is disqualified from testifying in money-matters - from the Pasuk in Shoftim "Lo Yakum Eid Echad be'Ish".

(d) The ramifications of this statement are - that in the case of a Get, the woman is not divorced, and in the case of a loan, the creditor cannot claim from Meshubadim (and even if he seized the property as payment for the loan, we take it away from him [Rosh]).




(a) The Chachamim had to send Rebbi Yirmiyah a She'eilah (rather than ask him in the Beis-Hamedrash) - because on another occasion, they expelled him from the Beis-Hamedrash (for having asked a number of irrevelant She'eilos), as we learned in 'Lo Yachpor'.

(b) When they sent him the She'eilah whether one witness in writing and one oral witness will combine, he replied that this She'eilah was not relevant according to the Chachamim of Rebbi Yehoshua ben Korchah - who ruled that irrespective of whether the witnesses testify in writing or orally, they do not combine, unless they saw the act simultaneously (how much more so if one of the witnesses testified in writing and one orally).

(c) The She'eilah is relevant - according to Rebbi Yehoshua ben Korchah, who validates two witnesses in writing or two oral witnesses, even if they witnessed the act one after the other. And the She'eilah is - whether that concession will extend to a case where one witness signed and the other one testified orally.

(a) Rebbi Yirmiyah resolved the She'eilah - in the affirmative, that the two witnesses do indeed combine.

(b) What is remarkable about the way in which he replied - is his humility. Although he himself was unworthy of resolving the She'eilah, he said humbly, he was however, inclined to think (describing himself as the disciple of those who posed the She'eilah) that they combine.

(c) Rav Ashi told Ameimar that he learned the She'eilah differently. According to him, it was a question of one witness who testified in one Beis-Din, and the other witness, in another Beis-Din - and the She'eilah was - whether the two Batei-Din could combine, to combine the two testimonies.

(d) But one witness in writing and one, orally - would not combine, according to Rebbi Yirmiyah. Rav Ashi found it necessary to say that - because otherwise, we would be left with a Kashya on Abaye, in whose opinion they do not combine either, as we learned above.

(a) In similar style to his previous answer, Rebbi Yirmiyah cited the Machlokes between Rebbi Nasan and the Rabbanan in Makos to resolve the She'eilah. Rebbi Nasan says there - that one may hear the testimonies of witnesses on two different days?

(b) Rav Ashi's version is not relevant, according to the Rabbanan of Rebbi Nasan - who do not even accept the testimony of two written witnesses or two oral witnesses on two different days, let alone one written witness and one oral one.

(c) It is however relevant, according to Rebbi Nasan - who validates the testimony of two written or oral witnesses on two separate days. And the She'eilah is - whether this extends to the testimonies of one written witness and one oral one.

(a) According to Mar bar Chiya, the She'eilah concerns a case where two witnesses testified first in one Beis-Din and then in another. This She'eilah is not relevant according to Rebbi Nasan - according to whom even two witnesses at different times combine, how much more so two Dayamin from two different Batei-Din.

(b) The She'eilah therefore is - according to the Rabbanan of Rebbi Nasan, who invalidate two witnesses at two different times, but who might validate two Dayanim to combine.

(a) Ravina has yet a fourth explanation of the She'eilah. According to him, we are discussing a case of three Dayanim who sat to verify a Sh'tar and one of them died. The She'eilah, according to him, is - whether we need to insert in the Sh'tar the fact that the case began with three Dayanim and that one of them had died in the course of the case.

(b) Rebbi Yirmiyah replied - that they are indeed obligated to do so.

(c) They reacted to his answer - by inviting him back into the Beis-Hamedrash.

(a) Twenty-five Sela'im comprise ...
1. ... a hundred Zuz (or Dinrim), and ...
2. ... a Manah.
(b) If Reuven produces a Sh'tar in which he wrote a hundred Zuz which are ...
1. ... twenty Sela'im - he will be entitled to claim a hundred Zuz.
2. ... thirty Sela'im which are a hundred Zuz - he may only claim a hundred Zuz (twenty-five Sela'im).
(c) The common reason for both of these rulings is - the principle 'Yad Ba'al ha'Sh'tar al ha'Tachtonah' (which is equivalent to 'ha'Motzi me'Chaveiro Alav ha'Re'ayah').

(d) To resolve the apparent discrepancy, we explain his words as follows.
When he stipulated ...

1. ... a hundred Zuz which are twenty Sela'im, he meant a hundred poor-quality Zuz which are only worth twenty Sela'im (instead of the normal twenty-five)
2. ... a hundred Zuz which are thirty Sela'im - he meant a hundred Zuz which are equivalent to thirty poor-quality Sela'im, instead of the normal twenty-five.
(a) If the Sh'tar reads 'Kesef Zuzin de'Inun ... ', 'Sil'in de'Inun ... ' or Darchonos de'Inun ... ' (and the amount has been erased), he will be entitled to claim - at least two silver Dinrim, two Sela'im and two Darkemonim respectively.

(b) It is customary to repeat the major details of a Sh'tar at the end of the Sh'tar. If, at the beginning of the Sh'tar, he wrote ...

1. ... Manah, and at the end, Masayim - he may claim Masayim.
2. ... Masayim, and at the end, Manah - he may claim a Manah ...
(c) ... because we consider the end of the Sh'tar to be the essence of the Sh'tar (though this does not include the last line, as we learned earlier).

(d) The reason that they insert the first half of the Sh'tar is - so that should the Sofer have omitted something from the second half, then we copy it from the first half.

(a) If the Ba'al ha'Sh'tar he produces a Sh'tar in which is written ...
1. ... 'Kesef', the Beraisa entitles him to claim - not less than a silver Dinar.
2. ... 'Kesef Dinrim or Dinrim Kesef' - not less than two silver Dinrim.
3. ... 'Kesef be'Dinrin' - not less than two golden-Dinrim worth of silver.
(b) In the first of these cases, we know that Kesef does not mean ...
1. ... a lump of silver - because it speaks, says Rebbi Elazar, when he added the word 'Matbe'a' (in coins).
2. ... silver P'rutos - because, Rav Papa explains, the Tana is speaking in a place where silver P'rutos are uncommon.
(c) We learned in another Beraisa that if the Sh'tar contains 'Dahav', the Ba'al ha'Sh'tar may claim not less than a Dinar Zahav (which is equivalent to twenty-five silver Dinrim). We know that he did not mean ...
1. ... a gold nugget, says Rebbi Elazar - because here too, the Tana speaks when he inserted the word 'Matbe'a' in the Sh'tar.
2. ... P'rutos of gold, Rav Papa explains here too - because there is no such thing as P'rutos of gold.
(d) If the Sh'tar contains 'Dahav be'Dinrim', he may claim - not less than two silver-Dinrim worth of gold.
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