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Bava Basra 168



(a) We learned in our Mishnah that the husband pays for the Get. The source for this is the Pasuk -"ve'Kasav ... ve'Nasan" (implying that the one who gives the Get is the one who must also write it).

(b) The Chachamim however - worried that the man will hold back the Get (see Rabeinu Gershom), switched the onus of paying on to the woman.

(c) According to some texts (see Rabeinu Gershom), we ask why the man pays for the receipt and not the woman - and we reply that it is indeed the woman who pays for the receipt, only the Tana attributes it to the man, because it is the man who pays for the Get (in the Reisha).

(d) Nevertheless, we reject this text - on the grounds that it is highly irregular for a Tana to state a false Halachah in the Seifa, to balance a statement in the Reisha.

(a) We also learned that it is the borrower and the purchaser who pay the Sofer. This would be obvious in a regular case. But when the Tana rules that ...
1. ... the borrower pays the Sofer's fees - he is speaking in a case of 'Iska', where he has to pay despite the fact that he invests the money, and the lender benefits from the investment, too.
2. ... the purchaser pays - he is speaking about a seller who is selling his field because it is of poor quality, in which case he benefits from the sale, too. In this case too, we may well have thought that under the circumstances, both parties are obligated to share the costs.
(b) Similarly, in order to teach us that both parties must pay the Sofer in the case of ...
1. ... Sh'tarei Erusin - he must be speaking in a case where the Chasan is a Talmid-Chacham, and that it is the father of the Kalah who benefits most.
2. ... Sh'tar Arisus ve'Kablanus - he is speaking in a year where the Aris or the Mekabel does not benefit from the filed because he leaves it fallow. In both cases, we may have thought that the one who derives the most benefit must pay the Sofer's fee.
(c) And the same applies to Sh'tarei Birurin, which we initially interpret as Sh'tarei Ta'anasa - referring to the respective arguments of the litigants, which the Beis-Din Sofrim record, to ensure that neither party deviates from his original arguments, and by means of which they arrive at their conclusions.

(d) Rebbi Yirmiyah bar Aba interprets it as - each litigant's choice of Dayan, which they would record, to prevent either party from retracting from his original choice.

(a) According to Raban Shimon ben Gamliel in our Mishnah, in the case of Sh'tarei Birurin, each litigant is entitled to his own Sh'tar, whereas the Rabbanan make do with one. We suggest that they argue over 'Kofin Oso al Midas S'dom'. 'Midas S'dom' - refers to the Midah of the men of S'dom, who (according to one Tana in Pirkei Avos) maintained 'she'Li she'Li, ve'she'Lecha she'Lach' (refusing to share anything or to give away anything to anybody).

(b) That will explain our Machlokes Tana'im - inasmuch as the Rabbanan, who hold that the two litigants should share a Sh'tar, hold like the Tana in Avos, whereas Raban Shimon ben Gamliel, who holds they each one is entitled to his own Sh'tar, disagrees.

(c) We reject this suggestion however, concluding that everyone agrees on principle with the 'Kofin Oso al Midas S'dom', and Raban Shimon ben Gamliel's reason for requiring two Sh'taros is - because whereas Midas S'dom is based on pure selfishness, the two litigants in our case, have good reason to insist on their own Sh'tar. Each one sees the other as a crouching lion, who will use the other's arguments, should they appear on the same Sh'tar, to start up with him again outside of Beis-Din.

(a) Our Mishnah discusses a case where the debtor paid part of his debt and the Sh'tar was then handed to a third party for safekeeping. The debtor stipulated - that if he fails to pay the balance by a certain date, the third party should return the Sh'tar to the creditor.

(b) What they stood to gain by giving the Sh'tar to a third party was - the bother of writing a receipt (see Rashash).

(a) Rebbi Yossi and Rebbi Yehudah argue over the Halachah should the specified time arrive and the debtor has not paid. Rebbi Yossi says 'Yiten', because he holds 'Asmachta Kanya'. 'Asmachta' means - when Reuven promises to do something for Shimon which he thinks that he will be able to do (such as here, where he thinks he would be able to pay by the given date), and later, he finds that he cannot do it.

(b) Rebbi Yehudah rules - 'Lo Yiten', because he holds 'Asmachta Lo Kanya'. (c) Rav Nachman ... Amar Rav rules like Rebbi Yossi.
Rebbi Ami rule like that too - because he heard it twice from Rebbi Yochanan.

(d) But in fact, we rule - 'Asmachta Lo Kanya'.

(a) If a creditor's Sh'tar became erased through an O'nes - our Mishnah requires a creditor to bring two witnesses who know all the relevant details of the Sh'tar, which Beis-Din then rewrite, adding that the original Sh'tar was erased.

(b) They write - the original date on the Sh'tar.

(c) The final item on the new Sh'tar is - the Beis-Din's signatures.

(d) The creditor will be permitted to claim with this Sh'tar without having to bring any further proof - only if the Beis-Din have inserted in the Sh'tar that they examined the witnesses.




(a) The Beraisa continues 'Nikra Pasul, Niskara Kasher', which means - that if it was deliberately torn, it is Pasul, but if it became torn inadvertently, it is Kasher.

(b) The Tana says that a Sh'tar that is erased or smudged - is Kasher, as long as the script remains legible.

(c) Rav Yehudah confines 'Nikra' to a tear of Beis-Din, which Rav Yehudah defines as the part of the Sh'tar that contains the witnesses signatures, the date and the Toref (which also explains why it is Pasul). According to Abaye, it has nothing to do with *where* it is torn, but *how* it is torn. If it is torn 'Shesi ve'Arev' (two tears in the shape of a cross), it is Pasul; otherwise, it is Kasher.

(a) Some Arabs entered Pumbedisa and proceeded to help themselves to people's lands, forcing the landowners to hand over their deeds of sale together with the land. The latter expected Abaye to help them - by reading over their deeds of sale, and permitting copies of them to be made, to as to retain proof of ownership, should the Arabs deprive them of the originals.

(b) In reply, Abaye quoted Rav Safra - who prohibited owning two such documents for fear that, after returning the one Sh'tar to the (later) purchasers from whom he had claimed Meshubadim (following the seller's creditor having claimed his field), he will then produce the second Sh'tar and claim again from another (later) purchaser. It is unclear though, why Abaye did not permit a second Sh'tar without Acharayus (as the Beraisa that we quote shortly, does). In any event, Rav Safra's statement will be explained on the following Amud.

(a) When the landowners persisted, Abaye got rid of them by instructing his Sofer - to write them a Sh'tar on erased parchment and the signatures on a clean section of the Sh'tar (which is Pasul, as we learned earlier).

(b) When Rav Acha bar Minyumi queried Abaye from the Beraisa that we just quoted 'Nimchak O Nitashtesh, Im Rishumo Nikar, Kasher' Rav Acha thought - that Abaye meant the Sofer to write the Sh'tar, erase it and write it again on top of the erasure, in which case his concern was justified.

(c) Abaye replied however - that what he really wanted the Sofer to do was to write gibberish on the parchment and erase it, and to write on top of that (and there was nothing to be afraid of).

(a) The Beraisa rules that, if someone claims that he lost his Sh'tar, and witnesses attest to having written it, signed it and given it to him - they are not permitted to write him a new Sh'tar.

(b) It would however, be permitted - if there were witnesses who could testify that the original Sh'tar was lost.

(c) The reason for this stringency is because we suspect that he did not really lose the Sh'tar at all, and that he wants to hold two Sh'taros in order to claim twice (as we explained earlier). Alternatively, we are afraid that he will find the lost Sh'tar and claim with it a second time (see Maharsha).

(d) This stringency will not however, apply in the case of a *purchaser* who claims that he lost his Sh'tar - because, seeing as he really did purchase the Sh'tar, there is nothing to be afraid of, bearing in mind that ...

(a) ... we will specifically preclude Shibud from a Sh'tar Mekach which the purchaser claims to have lost and which is being re-written.

(b) Raban Shimon ben Gamliel disagrees. He extends the stringency of Sh'tarei-Chov to Sh'tarei Mekach u'Memkar - based on the fear that the purchaser may have returned the Sh'tar Mechirah to the seller, thereby invalidating the sale (on account of the principle 'Osiyos Niknos bi'Mesirah' [the contents of a Sh'tar are acquired with the handing over of the Sh'tar]).

(c) The Chachamim hold - 'Ein Osiyos Niknos bi'Mesirah', and there is nothing to be afraid of.

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