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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 return them.


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.
2. 'Shovrin' are - receipts.
(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.

(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 signing.

(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 DH 'Haynu']).

(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.
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 Chachamim.
(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.
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