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Bava Metzia, 7


QUESTION: The Beraisa teaches that when two people, a Malveh and a Loveh, are holding on to a Shtar, and the Malveh says that it fell from him and it was not yet paid, and the Loveh claims that it was he who dropped it and it was paid already, Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Rebbi Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ("Yachloku"). The Gemara asks how can Rebbi allow the Malveh to collect with the Shtar if they are both holding on to it? Does he argue with the ruling of the Mishnah (2a) that says that we split the Talis between the two claimants when they are both holding it? The Gemara answers that Rebbi, too, says that it is split, but only after the Malveh is Mekayem it, because until he is Mekayem the Shtar, the Loveh is believed to say that he paid it (this is because Rebbi holds "ha'Modeh b'Shtar she'Kesavo Tzarich l'Kaimo").

Why does the Gemara question Rebbi's statement based only on the ruling of our Mishnah? Even without our Mishnah, Rebbi's opinion seems to be logically unsound. If both the Malveh and Loveh are holding the Shtar, then why should we honor the Malveh's rights to the Shtar more than we honor the Loveh's rights?

Perhaps the Gemara means that Rebbi's ruling can be defended on the logical basis cited later in the Gemara of "Lo Chaishinan l'Pira'on" -- we do not take into account the possibility that the Loveh paid back the loan that is written in the Shtar (since the moment a Loveh pays the loan, he tears up the Shtar; see Rashi 7b, DH v'Rebbi Yosi). Therefore, we honor the Malveh's claim and we do not accept the Loveh's claim that the Shtar was paid. However, if this is correct, then why should the ruling of our Mishnah be relevant to this case of two people holding a Shtar? A Shtar is different than a Talis, for the Shtar's existence itself proves that the Shtar was not paid and that the Malveh's claim is true!


(a) The MAHARI KATZ (cited by the Shitah Mekubetzes) explains that if the Shtar was found entirely in the hands of the Loveh, then even those who are of the opinion that we normally are not "Chaishinan l'Pira'on" agree that we would accept the Loveh's claim that the Shtar was paid (this would apply even if the Loveh would not have a "Migu" to say that he could have destroyed the Shtar, such as when witnesses saw the Shtar in his hands before he came to court). The reason for this is because the fact that the Loveh is holding the Shtar is proof that it was paid, which counteracts the Chazakah that tells us that a Loveh normally destroys a Shtar as soon as it is paid.

In the case of Rebbi, since the Loveh is holding half of the Shtar we should view it as a half-proof that the Shtar was paid, and therefore the Loveh should only be required to pay half of the loan. (See also MAHARAM SHIF.)

If it were not for the ruling of the Mishnah, we might have thought that when two people are holding a Shtar, we should rule "Yehei Munach" (the Shtar should be left in escrow) and neither of them are allowed to keep it. If that were the case, then the Malveh would be able to collect the entire loan, as Rebbi rules, based on the fact that the Shtar is not destroyed, since there is no proof to counteract it. However, since the Mishnah says "Yachloku," Rebbi should also rule "Yachloku."

(b) The RITVA makes a cryptic statement which seems to be meant as an answer to this question. It seems from the words of the Ritva that even if the presence of the Shtar proves that the loan was not paid back, nevertheless when the Loveh is holding on to the Shtar, he should be given half of it. What difference does it make if he owns a Shtar, or half of a Shtar, if in either case the loan will be collected? The difference is that the loan will not be collected from Nechasim Meshu'abadim (in addition, sometimes it is beneficial for the Loveh not to have a Shtar attesting to the loan in the hands of the Malveh; see Tosfos in Kidushin 27a, DH Chozer).

The case of Rebbi might be a case in which the Malveh lost the Shtar and gave up hope of ever finding it. Consequently, the Shtar becomes Hefker, just like the Talis of our Mishnah. The Loveh and the Malveh are now arguing over who gets to keep the Shtar itself (i.e. who gets to keep the piece of paper). The loan, however, must be paid in any case, since we know that it was not paid (because the Shtar would have been torn up had it been paid).

According to this, the Gemara is asking that Rebbi should mention not only whether the Loveh must pay the loan, but also what is done with the Shtar (is it given to the Malveh or to the Loveh). Since he makes no mention of whom to give the Shtar to, it implies that he is saying that it should be left in escrow, "Yehei Munach," in contrast to Rebbi Shimon ben Gamliel's ruling who says "Yachloku." The Gemara therefore asks how can Rebbi be arguing with our Mishnah that rules "Yachloku."

QUESTION: Rebbi and Rebbi Shimon ben Gamliel argue about a case in which two people, a Malveh and a Loveh, are holding on to a Shtar, and the Malveh says that it fell from him and it was not yet paid, and the Loveh claims that it was he who dropped it and it was paid already (see previous Insight). The Gemara concludes that the reason why Rebbi does not say "Yachloku" is because the Loveh is believed to say that he paid back the loan written in the Shtar with a "Migu" that he could have said that the Shtar is forged. After the Malveh is Mekayem the Shtar, Rebbi agrees with Rebbi Shimon ben Gamliel that the Shtar is split between them ("Yachloku").

RASHI (2a, DH b'Mekach u'Memkar) writes, with regard to the case of the Mishnah where two people are holding on to a Talis, that if each of the claimants holding the Talis claims that he is the one who wove the Talis, then we do not divide it among them because we know that one of them is certainly lying and is a "Ramai." Rather, we say "Yehei Munach" and leave the Talis in escrow (see Insights to 2:1.)

According to Rashi, why should the same Halachah not apply to a Shtar Chov that is in the hands of both the Malveh and Loveh? Since one claims that it was not paid, and the other claims that it was paid, we know that one of them must be a Ramai! Hence, the Halachah should be "Yehei Munach!" (ROSH 1:1; see TOSFOS 2a, DH v'Yachloku.)


(a) The RASHBA (2a; see also PNEI YEHOSHUA here) answers that in the case of the Shtar, "Yehei Munach" is not an option since, if the Shtar is put in escrow, then the Loveh will effectively be meritorious in the case, since he will not have to pay the loan.

Perhaps Tosfos and the Rosh did not accept this argument because Beis Din can still rule "Yehei Munach" by requiring the Loveh to pay the money of the loan to the court which will then be placed in escrow, and neither the Loveh nor the Malveh will receive the money.

However, the Rashba (2b) responds to this argument by saying that if the money is taken away from the Loveh and put in escrow, then the Loveh has entirely *lost* the case, because once the money is no longer in his possession it makes no difference to him whether the money is given to the Malveh or not. Therefore, it is not fair to take the money from the Loveh even if it is not being given to the Malveh.

(b) The PNEI YEHOSHUA answers further that Rashi's ruling applies only when two people are holding the fringes ("Ochzin") of the Talis, and not when they are holding the Talis itself. When two people are holding the Talis itself ("Adukin"), the Beraisa rules that each of them receives until the point at which his hand reaches, and this ruling would apply even when there is a definite Ramai.

The Beraisa of Rebbi does not discuss two people who are "*Ochzin* b'Shtar," but rather two people who are "*Adukin* b'Shtar," meaning that they are holding the Shtar itself in their hands (as the Gemara on 7b points out when it discusses the Halachah when one claimant is holding the Tofes and the other is holding the Toref of the Shtar). Therefore, the Shtar is split even though there is a definite Ramai. This might also be the intention of the RI MI'GASH in Tosfos in Bava Basra (34b, DH ha'Hu).

However, Tosfos in Bava Basra there asks that according to this explanation, why does our Gemara question Rebbi from our Mishnah and say that he should rule "Yachloku?" The ruling of our Mishnah is not relevant in a case when two people are holding on to the Shtar! If anything, the Gemara should have questioned Rebbi from the Beraisa which discusses two people who are "Adukin b'Talis," and not from the Mishnah that discusses two people who are "Ochzin b'Talis," where the Halachah does not apply when there is a definite Ramai.

Perhaps the answer to this may be derived from the first words of Rashi on the Mishnah. According to the way we explained Rashi's words (see Insights there), Rashi explains that the word "Ochzin" in the Mishnah is meant to imply that we split the Talis only when both claimants are holding the fringes. However, if either of the claimants is holding part of the body of the Talis itself, then we do not split that part, but rather we give it to the person who is holding it. Accordingly, the Halachah of "Adukin" may be learned through inference from the words "Shenayim Ochzin" in the Mishnah. When the Gemara asks that Rebbi should agree with the Mishnah, it means that he should agree that when the claimants are not merely "Ochzin" but they are holding the object itself, that part is given to them because they are considered to be Muchzak and "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," as the Beraisa here teaches. Hence, the Gemara is indeed asking from the Halachah of the Beraisa and not from the Halachah of the Mishnah.


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