ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Metzia 13
BAVA METZIA 11-17 - This study material has been produced with the help of
the Israeli ministry of religious affairs.
(a) Rav Asi just concluded that it is forbidden to write a Sh'tar without
the creditor being present, unless it is a Sh'tar Hakna'ah. The problem with
this, based on our Mishnah, which we just established when the debtor admits
that the Sh'tar is valid and that he owes the money, yet if it contains
Acharayus, it may not be returned to the creditor, because we are afraid
that the borrower may have written the Sh'tar before he made the loan is -
that according to Rav Asi, 'Mah Nafshach', if it is a Sh'tar Hakna'ah, so
what if he did? and if it is not, why should we suspect the Sofer of writing
a forbidden Sh'tar?
(b) Rav Asi resolves this problem, like we resolved the previous one - by
stressing the fact that the Sh'tar was lost, in which case, it is considered
flawed and we suspect that it was written before the loan took place.
(c) Abaye disagrees. According to him, if writing a Sh'tar for the debtor
without the creditor being present were prohibited, we would not suspect the
Sofer of contravening the prohibition (even though the Sh'tar was lost). The
concession to write such a Sh'tar, even when the creditor is not present -
is based on the principle 'Eidav ba'Chasumav Zachin Lo' (the witnesses that
sign on a Sh'tar-Chov, legalize the loan retroactively from the time of
signing, even though the debt took place only later.
(a) The Mishnah in Gitin states that in a case where someone found Gitei
Nashim, Shichrurei Avadim, Dayteki, Matanah or Shovrin - he is forbidden to
1. 'Dayteki' is - the last will of a dying man (the acronym of 'Da Teyku' -
this stands', because the last (spoken) will of a dying man is considered as
if it was already written and handed over to the beneficiary.
(c) According to Abaye, why do we not return them - because 'Eidav
ba'Chasumav Zachin Lo' only applies retroactively from the time the creditor
receives the Sh'tar, whereas in this case, we suspect that he wrote the
Sh'tar, but never gave it to the recipient in the first place.
2. 'Shovrin' are - receipts.
(d) According to Abaye, a Sh'tar is 'Mukdam' and Pasul - if, either the
writing and the dating of the Sh'tar took place before the signing of the
witnesses, or if the writing and signing took place simultaneously, but it
was pre-dated. In short, a Sh'tar is Mukdam if the date on it precedes the
(a) According to Rav Asi, we established our Mishnah 'Matza Sh'tarei-Chov Im
Yesh Bahen Acharayus Nechasim, Lo Yachzir' by Sh'taros that are not Sh'tarei
Hakna'ah. According to Abaye however, the prohibition extends even to
Sh'tarei Hakna'ah - because we are afraid that in fact, the debt has already
been paid, and the reason the debtor denies this is because he is in
collusion with the creditor, who wants to claim again from the purchasers.
(b) And the reason the Rabbanan then prohibit even the return of Sh'taros
which do not contain Acharayus is - because they hold 'Acharayus Ta'us
Sofer' (every Sh'tar automatically includes Acharayus, and the failure to
insert it in the Sh'tar is merely an error on the part of the Sofer [Tosfos
(a) Shmuel does not suspect that a Sh'tar-Chov has been paid - because the
debtor would then have torn up the Sh'tar immediately (even if the debtor
denies owing the money, and certainly where he admits it).
(b) Shmuel might hold like Rav Asi, and establish our Mishnah by Sh'taros
that are not Sh'tarei Hakna'ah. Assuming he holds like Abaye - he will
establish the Mishnah when the debtor denies the claim.
(c) We do not permit the return of the Sh'tar, and substantiate it through
its signatories - because a Sh'tar that has been lost is considered flawed
(as we explained above).
(d) Even though Shmuel might hold like Abaye (who does not differentiate
between the two types of Sh'tar), as we just suggested, he nevertheless
confines the return of found Sh'taros to Sh'tarei Hakna'ah (see 14a) -
because he suspects that the loan may never have taken place, in which case
even Abaye will agree that they are Pasul (as we explained above).
(a) Even if our Mishnah is speaking when the debtor claims that the Sh'tar
is forged, as we just explained according to Shmuel, Rebbi Meir will permit
the return of a Sh'tar which does not contain Acharayus - because Shmuel
holds that according to Rebbi Meir, a Sh'tar that does not contain
Acharayus, is completely invalid, and one cannot even use it to claim from
B'nei Chorin either.
(b) The point of returning the Sh'tar to the creditor, says Rav Nasan bar
Hoshaya - is indeed to use as a bottle-stopper.
(c) And the reason that we return it to the creditor and not to the debtor
is - because the debtor denies having written the Sh'tar in the first place
(as we explained).
(d) The Rabbanan forbid returning the Sh'tar - because they suspect the
Sh'tar to be forged, and if it is returned, it is will be valid to claim
from B'nei Chorin.
(a) According to Rebbi Elazar, Rebbi Meir and the Chachamim will agree that
once the debtor concedes the validity of the Sh'tar, the finder is obligated
to return the Sh'tar, and we are not worried about collusion. Seeing as they
are arguing over a Sh'tar which does not contain Acharayus, the basis of
their Machlokes is - when the debtor claims that the Sh'tar is invalid.
Rebbi Meir holds that a Sh'tar which does not contain Acharayus cannot be
used even to claim from B'nei Chorin (so there is no harm in returning it,
as we explained according to Shmuel), whereas the Chachamim permit it
(because we suspect that the Sh'tar is forged ... [as we explained there]).
(b) This conforms with the opinion of Shmuel (assuming that he holds like
Abaye). According to Rebbi Elazar and Shmuel, had this Sh'tar not got
lost, it would have the status, according to ...
1. ... Rebbi Meir - of a Milveh-al-Peh (an oral loan) without witnesses.
2. ... the Chachamim - of a Milveh-al-Peh with witnesses.
(a) Rebbi Yochanan establishes the Machlokes between Rebbi Meir (who says
'Yachzir') and the Chachamim (who say 'Lo Yachzir') when the debtor admits
that the Sh'tar is valid, and they argue over whether one may claim
exclusively from B'nei Chorin (Rebbi Meir) or even from Meshubadin (because
Acharayus Ta'us Sofer [the Chachamim]), in which case we suspect that the
debtor has already paid and that he is in collusion with the creditor to
claim from the purchasers.
(b) Even Rebbi Meir will concede 'Lo Yachzir' however, if the debtor
objects - because he is afraid that maybe the debt has been paid.
(c) We cite a Beraisa, which establishes the Machlokes when the debtor
admits that the Sh'tar is valid, like Rebbi Yochanan, leaving us with a
Kashya on Rebbi Elazar. The Tana rules that ...
1. ... if a Sh'tar does not contain Acharayus according to Rebbi Meir - the
creditor may claim from B'nei-Chorin.
(d) Despite the fact that Rebbi Elazar holds a. that Rebbi Meir completely
invalidates a Sh'tar which does not contain Acharayus, and b. that neither
Tana suspects collusion (clashing with the Beraisa in both issues), the Tana
nevertheless considers this to be only one Kashya and not two - because
having established the Machlokes when the debtor objects to the validity of
the Sh'tar, he had to issue the first of the two statements, and it is
natural for him to conclude that when he admits to the Sh'tar's validity,
both sides agree that one returns the Sh'tar, thereby forcing him to issue
his second statement.
2. ... a found Sh'tar which contains Acharayus and which the debtor himself
validates - may not be returned to either the creditor or the debtor
(because we are afraid of collusion), according to both Rebbi Meir and the