THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Metzia, 7
1) TWO PEOPLE HOLDING ON TO A "SH?TAR CHOV"
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").
2) COMPARING A DISPUTE OVER A "TALIS" TO A DISPUTE OVER A "SHTAR"
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
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
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.