# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A standard Get is dated according to the true
               year of the king's reign. In a tied Get, the date is
               written a year more than his actual reign.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Perhaps Reuven borrowed money with a tied Get,
               and when he paid, Shimon said 'I do not have the
               document to return it', and instead gave a receipt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Later, Shimon will make it a standard Get, and
                    its date is after the receipt (showing that
                    Reuven did not repay this loan, rather, a
                    previous loan)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Chanina ben Gamliel holds that we do not
          write receipts. (Reuven will not pay until Shimon finds
          the document.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Did Rebbi really understand tied Gitin?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A tied Get was brought in front of Rebbi. He said
               'it is postdated.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Zunin (a Chacham):</font></b> This is the custom. In a tied
               Get, the date is written a year more than the king's
               actual reign.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> After Zunin explained to him, he understood.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A standard Get was dated 'in the year of (King) Ploni
          <i>Archan</i>' (this will be explained).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Chanina):</font></b> It was written in his first year (then he
          is called Archan). The lien starts from then.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps Archan means that he has reigned for
          a long time (and the lien starts only this year)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Hoshaya):</font></b> The custom is, the first year he
          is called Archan. The second year he is called Digun.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps the king was deposed and reinstated
          (without our knowledge), and the Get says Archan because
          it was in the first year he was reinstated (but we think
          that the lien is from the first year he ever reigned)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> In such a case, he is called
          Archan Digun.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa - Sumchus):</font></b> If a man accepted Nezirus 'Heina'
          this means once. 'Digun', 'Trigun', 'Tetrigun' and
          'Pentigun' mean, respectively, two, three, four and five
          times.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A house that is round, three sided or five
          sided does not receive Tum'as Tzara'as. A four sided
          house receives Tzara'as.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> It does not say 'Kir', rather, 'b'Kiros.'
          This teaches about two walls. Also later in the Parshah
          it says 'b'Kiros.'
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	A tied Get was brought in front of Rebbi. He said 'it
          is not dated'!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	R. Shimon bar Rebbi:</font></b> Perhaps it is covered between the
          folds.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi unfolded it and saw the date. Rebbi looked
               cross (because the date was so concealed;
               alternatively, Rebbi preferred standard Gitin).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Shimon:</font></b> I did not write it. Yehudah the scribe
               wrote it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rebbi:</font></b> Do not speak Lashon ha'Ra!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LASHON HA'RA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rebbi once praised a Sefer Tehilim. His son Shimon said
          'I did not write it. Yehudah the scribe wrote it.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rebbi:</font></b> Do not speak Lashon ha'Ra!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, regarding the tied Get, it was
          Lashon ha'Ra to say that Yehudah wrote it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why was it Lashon ha'Ra to say that he wrote the
               Sefer Tehilim?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Dimi, brother of Rav Safra):</font></b> One should not
          speak favorably of another, lest he (R. Gershom - others)
          come to speak to his detriment.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Amram):</font></b> There are three transgressions that
          (almost all) people transgress every day: thought of
          (sexual) transgression, Iyun in prayer (Rashbam - feeling
          that he is worthy to be answered; Tosfos - lack of
          concentration), and Lashon ha'Ra.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> People do not speak Lashon ha'Ra every day!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, they transgress Avak Lashon ha'Ra
          (a statement that can be understood positively or
          negatively).
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LASHON HA'RA (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Most people transgress theft (laws of
          buying and selling), a minority of people have Bi'ah with
          Arayos, and (virtually) everyone transgresses Lashon
          ha'Ra.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> Not everyone transgresses Lashon ha'Ra!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, they transgress Avak Lashon ha'Ra.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A SHALI'ACH WHO DEVIATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> All is according to
          the local custom.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Do Chachamim (the first Tana) disagree?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> In a place where standard Gitin are
          normally written, if Reuven asked a scribe to write a
          standard Get and the scribe wrote a tied Get, all agree
          that Reuven did not want this (if it is a Get of divorce,
          it is invalid);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In a place where tied Gitin are normally written,
               if he asked for a tied Get and the scribe wrote a
               standard Get, all agree that Reuven did not want
               this;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They argue about a place where both kinds are
               written, and he asked for a standard Get, and the
               scribe wrote a tied Get. Chachamim say, since he
               asked for a standard Get, this shows that he does
               not want a tied Get;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon ben Gamliel says, Reuven merely showed
                    that he is happy <i>even</i> with a standard Get, so
                    the scribe need not toil to write a tied Get.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Abaye):</font></b> R. Shimon ben Gamliel, R. Shimon and R. Elazar
          all hold that one (sometimes) tells a Shali'ach (agent)
          how to do something, but he does not mind if it is done
          differently.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel - in our Mishnah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah - R. Shimon):</font></b> (If Leah told a Shali'ach
               'Shimon wants to be Mekadesh me with a silver Dinar.
               Go receive it for me',) if he received better than
               this (e.g. gold), she is Mekudeshes.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Elazar - (Mishnah):</font></b> If Leah asked a Shali'ach
               'receive my Get (of divorce) in Ploni (a certain
               place)', and he received it somewhere else, the Get
               is invalid (she wanted to be divorced only in
               Ploni);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Elazar says, it is valid (she merely suggested
               where she thinks her husband is).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A GET WITH TOO FEW WITNESSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A standard Get with only one witness...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We understand why the Mishnah must teach that a tied
          Get with only two witnesses is invalid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that since two witnesses
               normally suffice, here also this is valid
               (b'Diavad). The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why must it teach that a standard Get with
          only one witness is invalid?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> This teaches that even if one witness
          signed and one witness testifies orally (in Beis Din)
          that the Get is valid, it is invalid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Ameimar ruled that such a Get is valid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> Abaye disqualifies such a Get!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Ameimar:</font></b> I disagree with Abaye.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> How does Ameimar explain the Mishnah?
<br>
<br>

sjt:
<font><b>1) A 'SHTAR MEKUSHAR' THAT IS 'PASUL MID'ORAISA'</b></font><b>
<br>QUESTION:</b> The Mishnah (160a) says that a Shtar Mekushar on which only two witnesses are signed is invalid, because one of the laws of a Shtar Mekushar is that it must be signed by at least three witnesses. A normal Shtar on which only one witness is signed is invalid. The Gemara here asks that it is obvious that such a Shtar is invalid; the Torah requires two witnesses in all matters of testimony! Ameimar answers that the Mishnah is teaching that just as a normal Shtar is Pasul mid'Oraisa when only one witness is signed on it, a Shtar Mekushar is also Pasul mid'Oraisa when only two witnesses are signed on it.
</p><p>
What does the Gemara mean when it says that a Shtar Mekushar is Pasul mid'Oraisa when only two witnesses are signed on it? A Shtar Mekushar itself is only an enactment of the Rabanan, as the Gemara says earlier (160b)!
</p><p>
<b>ANSWERS:</b>
<br>(b) The <b>RAMAH</b> and <b>RITVA</b> answer that before the enactment of the Rabanan, mid'Oraisa a Shtar Mekushar was not a valid Shtar (because the witnesses are signed on the back of the Shtar and not below the text of the Shtar). The Rabanan enacted that such a Shtar may be used. Consequently, if the requirements of the Rabanan (such as having three witnesses sign it) are not met, then the Shtar is not valid at all, and it indeed is Pasul mid'Oraisa. (See also <b>RAMBAN</b> to 160a.)
</p><p>
(b) The <b>RASHBAM</b> apparently maintains that a Shtar Mekushar is a valid Shtar even mid'Oraisa. The Torah gives to the Rabanan the authority to establish the definition of a Shtar, and their definition has the status of a Shtar d'Oraisa. This has two important implications. The first is that if a Shtar Mekushar is valid mid'Oraisa, it is able to create some effect d'Oraisa (such as a divorce in the case of a Get Mekushar, or a Shibud Nechasim in the case of a Shtar Chov Mekushar). The second is that the witnesses who sign it serve as valid testimony and proof to what occurred.
</p><p>
When the Rabanan disqualified such a Shtar when it has only two witnesses, that Pesul is really only a Pesul d'Rabanan since, mid'Oraisa, the Shtar is valid with two witnesses. The Rabanan gave such a Shtar the stringency of a Pesul d'Oraisa so that it cannot create the desired effect. Thus, if a man gives his wife a Get Mekushar that has only two witnesses signed on it, the woman is not divorced and needs another Get. Similarly, if a debtor writes a Shtar Mekushar for his creditor, the creditor cannot use it to collect a debt from Nechasim Meshubadim. This is what the Gemara means when it says that such a Shtar is Pasul mid'Oraisa.
</p><p>
However, since two witnesses are signed on the Shtar, the Shtar remains valid mid'Oraisa with regard to serving as testimony to what occurred. Thus, in the case of a Shtar Chov, the creditor may use such a Shtar as proof that the debtor borrowed money from him, and he may collect the money on the basis of this Shtar from Nechasim Benei Chorin, as the Rashbam here (end of DH u'Meshani) says (in contrast to the way Tosfos cites the Rashbam). This is also the ruling of the <b>PISKEI HA'RID</b> and <b>RI'AZ</b>.
</p><p>
Similarly, <b>RABEINU GERSHOM</b> explains that when the Gemara says that a Shtar Mekushar with two witnesses is Pasul mid'Oraisa, it means that the Rabanan decreed that it be treated like a Pesul d'Oraisa, so that if the creditor who is holding such a Shtar seizes property from the debtor's Nechasim Meshubadim, Beis Din does not allow him to keep it b'Di'eved, but rather he is forced to return it as if the Shtar was completely Pasul.
</p><p>
(c) <b>TOSFOS</b> (DH Hacha Nami) also says that the Pesul of a Shtar Mekushar with two witnesses is only a Pesul mid'Rabanan. The Gemara calls it a Pesul mid'Oraisa in order that people will treat it stringently, like a Pesul d'Oraisa, so that in the case of a normal Shtar that is Pasul (with a real Pesul d'Oraisa) people will treat it as a real Pesul d'Oraisa and not be lenient with it. (For example, when a child is born to a woman from a second husband after she received from her first husband such a Get that was Pasul, people should treat should treat that child like a Mamzer.)
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'> A DISCREPANCY IN A DOCUMENT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a document '100 Zuz' above, and it
               says 200 below (in the recap of the document), or
               vice-versa, we follow what is below.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We write the top so that if a letter is erased from
               the bottom, we can learn from the top.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'>(Rav Papa):</font></b> If above it says 'Sefel' and below it
               says 'Kefel', we follow the bottom.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Rav Papa):</font></b> If it says 'Kefel' above and
               'Sefel' below, what is the law? (Do we follow the
               bottom, or) do we suspect that the 'Kuf' should be a
               'Samech', and some of the ink was moved by a fly?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This question is not resolved.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> Sefel stands for Se'ah (about 12 liters)
               v'PaLga (and a half). 'Kefel' stands for 'Kava (six
               Sa'im) v'Palga.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Masnisin):</font></b> We follow the
                    bottom, for it is possible that he retracted.
                    If the bottom weakens the bearer, e.g. it says
                    that he is owed 100 (and the top says 200), we
                    learn even from the last line, since he or his
                    heir holds the document (we are not concerned
                    lest the borrower changed it). We do not learn
                    from the last line to help the bearer.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef (DH Sefel mi'Lema'alah):</font></b> The
                    question was undecided, so ha'Motzi mi'Chavero
                    Alav ha'Re'ayah. Normally, we divide money due
                    to a Safek. This is when it is impossible to
                    clarify, e.g. a dead fetus is near a gored cow
                    (and we do not know whether it miscarried
                    before the goring, or due to the goring), or a
                    house fell on a man and his mother (and we do
                    not know who died first, which determines who
                    inherits her property). Here, the judges do not
                    know the truth (what was written). The parties
                    to the document know, so the judges are quiet,
                    and everyone keeps what he has.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rashbam (166b DH Teiku):</font></b> Here, Beis Din is
                    unsure about the Halachah, so ha'Motzi
                    mi'Chavero Alav ha'Re'ayah. When we are unsure
                    what happened, e.g. a dead fetus is near a
                    gored cow, or a house fell on a man and his
                    mother, we divide money due to a Safek.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 27:15):</font></b> If above it says
               'Sefel', and below it says 'Kefel', we follow the
               bottom, for it is less. If it says 'Kefel' above and
               'Sefel' below, we suspect that the 'Kuf' should be a
               'Samech', and some of the ink was moved by a fly. He
               collects only the smaller measure of Kefel. The same
               applies to all similar cases. The bearer of the
               document has the lower hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Teshuvos Maimoniyos (Sof Sefer Mishpatim 69):
                    When it is impossible to resolve both
                    expressions, e.g. above it says 100 and below
                    it says 200, we follow the bottom. When it is
                    possible to explain that there is no
                    contradiction, we do so. E.g. if a man gave his
                    house to his son, and said 'as long as I live,
                    I have power to do as I wish with my property',
                    we say that this refers to his Metaltelim and 
                    other land. What he gave to his son is not 'my
                    property.' We write the top, so that if a
                    letter is erased from the bottom, we can learn
                    from the top.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe ha'Aruch (CM 42:8):</font></b> If possible,
                    we resolve the contradictory expressions even
                    if they are far from each other (in the
                    document), and all the more so if they are
                    close, for it is not normal to contradict
                    onself Toch Kedei Dibur.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Rosh (10:11) brings the Gemara verbatim.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 42:7):</font></b> If above it says 'Sefel'
               (a measure containing a Se'ah and a half), and below
               it says 'Kefel' (a Kav and a half), we follow the
               bottom, for it is less. If it says 'Kefel' above and
               'Sefel' below, we suspect that the 'Kuf' should be a
               'Samech', and some of the ink was moved by a fly. He
               collects only the smaller measure of Sefel. The same
               applies to all similar cases. The bearer of the
               document has the lower hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> Whenever a monetary
                    question is not resolved, we are stringent for
                    the claimant and lenient for the defendant. We
                    attribute the discrepancy to a fly, and he
                    collects only according to Sefel. If it was a
                    document of pardon, we do not say that a fly
                    changed the word. Ha'Motzi mi'Chavero Alav
                    ha'Re'ayah. R. Tam says that Sefel and Kefel
                    are names of Kelim. Alternatively, they stand
                    for Se'ah and a half and Kav and a half.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Sho'el u'Meshiv (4:2:220, cited in Hagahos Tur
                    ha'Shalem 37):</font></b> The Beis Yosef holds that
                    regarding a receipt of payment the bearer has
                    the upper hand, but if it is a receipt of
                    pardon, the bearer has the lower hand.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (21):</font></b> Tosfos and the Rashbam connote that
                    it is normal for a fly to shorten a letter
                    (from a Kuf to a Samech), but not to elongate a
                    letter. Therefore, if it says Kefel below, in
                    any case we follow it. The Rambam must hold
                    that it is normal for a fly to shorten or
                    elongate a letter, therefore, he says that he
                    collects Kefel because it is smaller.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Taz):</font></b> The Gemara said that if above
                    it says 'Sefel' and below it says 'Kefel', we
                    follow the bottom. If it says 'Kefel' above and
                    'Sefel' below, do we suspect that the 'Kuf'
                    should be a 'Samech', and some of the ink was
                    moved by a fly? This implies that in the first
                    case, there is no Safek about a fly. Surely the
                    bottom said Kefel, and we follow this whether a
                    fly changed the top to Kefel, or if the top
                    said Sefel and he retracted below. Also, in
                    Sotah (20a) R. Meir said 'I am concerned lest a
                    fly (rest on and) remove the ink at the
                    extension of a Dalet, making it a Reish! To
                    prevent this, I put vitriol in the ink.' Rashi
                    explains that (the extension) will not be
                    totally obliterated. If we are concerned lest a
                    fly extend letters, there is still concern! It
                    seems that the Rema (EH 125:15) is concerned
                    for this! He says that if a fly extended the
                    ink in a Get, we do not erase it. The Rambam
                    did not say that Kefel is less because the
                    bearer has the lower hand. Rather, he shows
                    that Kefel and Sefel are different, and in
                    every case we follow the bottom, whether it is
                    a leniency or stringency. The Tur says that the
                    bearer has the lower hand to explain why we are
                    concerned for a fly, which is a more remote
                    possibility, and we do not attribute the
                    discrepancy to a retraction. If the bottom says
                    Kefel, in any case he gets only Kefel. Do not
                    ask why here we do not say (that we follow the
                    smaller amount) like we say about other
                    contradictory expressions (218:14, 312:15). The
                    Nimukei Yosef (Bava Metzia 59b) explained that
                    this is only when they are next to each other,
                    e.g. 'Istira, 100 Ma'im.'
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (24):</font></b> According to the Rambam, it is always
                    a Safek (for a fly can also lengthen). If the
                    bearer seized, we do not take from him, even
                    though it is a Sefek Sefekah; see Rema (390:2)
                    (some say that seizure does not help when there
                    is a Safek about the Halachah).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Birkas Eliyahu (citing Be'er Eliyahu):</font></b> Two
                    Sefekos favor the borrower. Perhaps also above
                    it said Kefel, and a fly made it Sefel. Or,
                    perhaps nothing was changed, and we follow the
                    bottom. Even so, if the lender seized he keeps
                    it, for perhaps below it said Kefel.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Note:</font></b> This is called a Sefek Sefekah, even
                    though it matters only what was written below, 
                    whether or not the top was changed!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Gra (ibid.):</font></b> This is also relevant to a receipt
                    (the lender cannot prove that it is for the
                    smaller amount), like the Rema says in Sa'if 8.
                    Also, in Sa'if 5 we say that when we can
                    resolve the discrepancy, we do so. According to
                    the Rambam (we can resolve either way, i.e.
                    both should say Kefel or both Sefel), so the
                    bearer has the lower hand.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (8):</font></b> In all these cases that we say
               that the bearer has the lower hand. If he seized
               Metaltelim, we do not take them from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav v'Iy):</font></b> The Rif
                    says so (Bava Metzia 59b). The Ramban explains
                    that this is when the borrower willingly gave
                    the larger amount to the bearer. Hagahos
                    Maimoniyos (Hilchos Malveh 27:300) explains
                    that the bearer has the lower hand due to
                    ha'Motzi mi'Chavero Alav ha'Re'ayah. Now that
                    the bearer seized, the borrower is the Motzi.
                    The Magid Mishneh (27:16) says that this is
                    even if he seized in front of witnesses.
                    However, if the document says 'Dinarim', and
                    witnesses saw him seize more than two, he must
                    return the excess. The Tur discusses such a
                    document <i>after</i> discussing seizure, to show
                    that there seizure does not help. Seizure does
                    not apply to land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (15):</font></b> The <b>SMA</b> (23) and Poskim say that
                    even if he seized without Reshus (permission),
                    he keeps it. The Rosh (Bava Basra 1:13,8:30)
                    and many others connote like this, unlike the
                    Ramban brought in the Beis Yosef. I say that
                    they do not argue. The Poskim discuss a bearer
                    who has a Vadai claim, and the Ramban discusses
                    when he has a Safek claim. The Rosh (Bechoros
                    1:15) cites the Ramban, for they do not argue.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (16):</font></b> Seizure does not help for land,
                    even for attached produce, even if the bearer
                    is Vadai (unless he has a Migo), for land is in
                    its owner's Chazakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> All the more so, regarding a receipt we say
               that the bearer has the upper hand, for he is
               Muchzak. This is unlike those who disagree and say
               that even regarding a receipt, he has the lower
               hand.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A DiSCREPANCY IN A RECEIPT </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah teaches that a tied Get with only
          two witnesses is like a standard Get with only one
          witness: just like the latter is invalid mid'Oraisa, also
          the former.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE QUESTION ASKED OF R. YIRMEYAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support - Version #1 - Question (Chachamim of Eretz
          Yisrael):</font></b> Do we combine the testimonies of one signed
          witness and one oral witness?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Chachamim who argue with R. Yehoshua
               ben Korchah, who do not combine even two signed
               witnesses or two oral witnesses unless they saw the
               testimony together, and all the more so, one signed
               witness and one oral witness do not combine;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They ask according to R. Yehoshua ben Korchah.
               Does he combine two signed witnesses or two oral
               witnesses, but not one signed witness and one oral
               witness?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Or, even in this case, they combine?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> I believe that they combine.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (of support - Rav Ashi):</font></b> We learned a
          different version.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 - Question (Chachamim of Eretz Yisrael):</font></b> If
          two witnesses testified, each in a different Beis Din,
          may the Batei Din combine the testimonies?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Chachamim who argue with R. Noson,
               even if they testified in one Beis Din they do not
               combine (unless they testified together), and all
               the more so if they testified in different Batei
               Din;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They ask according to R. Noson. Does he combine
               two witnesses when they testified in one Beis Din, 
               and not if they testified in two;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Or, even in this case, they combine?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> I believe that they combine.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #3 (Mar bar Chiya) Question (Chachamim of Eretz
          Yisrael):</font></b> If two witnesses both testified in different
          Batei Din, may judges of the Batei Din combine to rule on
          the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Noson, we join witnesses who did
               not testify together, and all the more so, we join
               judges (they are proficient);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They ask according to Chachamim that argue with
               R. Noson. Does he say that we do not combine
               witnesses, but we combine judges;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Or, even judges do not combine?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> I believe that they combine.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #4 (Ravina) Question (Chachamim of Eretz
          Yisrael):</font></b> If three judges sat to validate a document and
          one of them died, must the other judges write (in the
          validation) 'three of us sat, and one died'?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> I believe that they must write
          this. (end of Version #4)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	After this answer, R. Yirmeyah was allowed to enter the
          Beis Medrash again. (He had been expelled for asking a
          question that showed skepticism about a teaching of
          Chachamim.)
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>VAGUE EXPRESSIONS IN A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a document says '100 Zuz, that are 20
          Sela'im (which is 80 Zuz)'. the bearer collects only 20
          Sela'im;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it says '100 Zuz, that are 30 Sela'im', the
               bearer only collects 100 Zuz;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If it says 'Kesef Sela'im (or Darkonos), that are...'
          and the number was erased, we know it was at least two.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If it says '100 Zuz' above (in the main text), and it
          says 200 below (in the recap of the document), or vice-
          versa, we follow what is written below.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why do we write the top?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> If a letter is erased from the bottom, we can
          learn from the top.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> 'Kesef' refers to at least one
          silver Dinar;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Kesef Dinarim' or 'Dinarim Kesef' refers to at
               least two;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Kesef <i>b</i>'Dinarim' refers to at least two gold
               Dinarim worth of Kesef.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that 'Kesef' means at least
          one silver Dinar. Perhaps he meant an ingot!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> It says 'coins'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps it means Perutos!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> It is in a place where they do not
          make silver Perutos.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Gold' refers to at least one gold Dinar;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Gold Dinarim' or 'Dinarim gold' refers to at
               least two;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Gold <i>b</i>'Dinarim' refers to at least two silver
               Dinarim worth of gold.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that 'gold' means at least
          one gold Dinar. Perhaps he meant an ingot!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> It says 'coins.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps it means Perutos!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> They do not make gold Perutos (anywhere).
<br>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>VAGUE EXPRESSIONS IN A DOCUMENT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that 'gold <i>b</i>'Dinarim'
          means at least two silver Dinarim worth of gold. Perhaps
          he meant a gold ingot worth two gold Dinarim!!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The bearer of the document has the
          lower hand.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we should say the same in the Reisha!
          (When it says 'Kesef <i>b</i>'Dinarim', why does he get two
          gold Dinarim worth of Kesef? The bearer should have the
          lower hand!) (text of Maharshal)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> There, it says <i>Dinari</i> (which
          connotes gold Dinarim). Here it says Dinari<i>m</i> (this can
          refer to gold or silver.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source to distinguish these
          expressions?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> If on five occasions, Leah had a
          doubt if she must bring a Korban for her miscarriage (or
          Zivah (non-menstrual blood)), once she brings one Korban
          (two birds), she may eat Kodshim. She is obligated to
          bring the rest.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Once, in Yerushalayim, pairs of birds were
               selling for Dinari of gold. R. Shimon ben Gamliel
               resolved to cause the price to drop to <i>Dinarim</i>. He
               expounded in Beis Din that she brings one Korban,
               she may eat Kodshim, and she need <i>not</i> bring the
               rest. The price plummeted to a quarter of a (silver
               Dinar).
<br>
<br>

sjt:
<font><b>1) THE MINIMUM NUMBER OF 'COINS' OF DIFFERENT DENOMINATIONS</b></font><b>
<br>QUESTION:</b> The Beraisa teaches that when a Shtar states that a person borrowed 'gold Dinarin' but it does not mention the number of Dinarin, the creditor may claim only two gold Dinarin, since the minimum number to which the plural word 'Dinarin' refers is two ('Mi'ut Rabim Shenayim'). The Beraisa earlier (165b) teaches the same with regard to a Shtar that says 'silver Dinarin.' Similarly, the Mishnah (165b) teaches that when a Shtar states that a person borrowed 'Zuzin,' 'Sela'in,' or 'Darkonos,' and the number of those coins was erased, the creditor may claim only two, the minimum number of the plural word used in the Shtar.
</p><p>
Why do the Mishnah and Beraisa need to repeat this law with regard to different types of coins? The Mishnah and Beraisa should teach this law in only one case, and one would know that whenever there is an unspecified amount of 'coins' (in the plural) the creditor may collect only two, regardless of what type of coin. (<b>TORAS CHAIM</b>, <b>TOSFOS YOM TOV</b>; see <b>SHINUY NUSCHA'OS</b> in the Mishnayos, and <b>DIKDUKEI SOFRIM</b> #7.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI SHLOMO</b> answers that the Mishnah and Beraisa are teaching a Chidush in each case. Since the subject of the Shtar is coins, which are divisible entities, one might have thought that even though the word used is plural it refers not to two coins but to one and a half coins. The Mishnah is teaching that the creditor is entitled to more than one and a half coins; he is entitled to take two full coins of the specified denomination, because if it is true that the debtor borrowed only one and a half coins (such as a Sela and half a Sela), the value of the half-coin would have been expressed in terms of a smaller denomination (a Sela and two Dinarin).
</p><p>
The Pnei Shlomo adds that this is why the Mishnah and Beraisa use the phrase, 'it is not less than two...,' instead of the phrase, 'he may collect only two.' 'It is not less than two' excludes a <i>lesser</i> amount and implies that one might have thought that the creditor is allowed to collect only an amount which is less than two (such as one and a half). 'He may collect only two' excludes a <i>greater</i> amount and implies that one might have thought that the creditor should collect more than two. Since the Mishnah is teaching that he <i>may</i> collect more than just one and a half, it says, 'it is not less than two.'
</p><p>
The Mishnah and Beraisa, therefore, need to teach this Chidush with regard to each denomination of coins, since one would not have been able to learn one from the other. People might write 'one and a half Zuzin' without expressing the fractional Zuz in terms of a smaller denomination. Therefore, the Mishnah must teach in each case that the plural word is not less than two.
</p><p>
(b) The <b>TIFERES YISRAEL</b> explains that each case in the Mishnah is necessary for the following reasons. In the case of 'Kesef Zuzin which are...,' where the number of Zuzin was erased, one might have thought that the creditor is entitled to collect four Zuzin, since the words 'Kesef Zuzin which are...' imply that the author of the Shtar is defining an equal value for 'Kesef Zuzin.' The lowest number of Zuzin which are equivalent to a different coin is four, and the Shtar originally said, 'Kesef Zuzin which are one Sela.' Therefore, the Mishnah needs to teach that the creditor may collect only two Zuzin, because perhaps the author of the Shtar was giving a number of Zuzin and not an equivalent value in another denomination.
</p><p>
In the case of 'Kesef Sela'in which are...,' where the number of Sela'in was erased, one might have thought that the author of the Shtar was referring to two <i>inferior</i> Sela'in (as mentioned earlier in the Mishnah), which are equal to seven Zuzin (or 6 2/3 Zuzin), and not eight Zuzin, and the Shtar originally read, 'Kesef Sela'in which are seven Zuzin.' Therefore, the Mishnah teaches that the creditor may collect two standard Sela'in and not merely inferior ones.
</p><p>
In the case of 'Kesef Darkonos which are...,' where the number of Darkonos was erased, one might have thought that the author of the Shtar certainly was referring to inferior Darkonos, for the following reason. A Darkon is a large and valuable gold coin, and people do not usually pay back debts with such coins. Accordingly, one might have thought that the author of the Shtar meant inferior gold Darkonos, and that is why he wrote the actual value of the Darkonos, which was <i>less</i> than the value of two standard Darkonos. Therefore, the Mishnah needs to teach that the creditor indeed is entitled to collect two normal Darkonos and not inferior ones.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A DISCREPANCY IN A RECEIPT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 165b (Mishnah):</font></b> If a document '100 Zuz' above, and
               it says 200 below (in the recap of the document), or
               vice-versa, we follow what is below.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We write the top so that if a letter is erased from
               the bottom, we can learn from the top.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 166b (Rav Papa):</font></b> If above it says 'Sefel' and below
               it says 'Kefel', we follow the bottom.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Rav Papa):</font></b> If it says 'Kefel' above and
               'Sefel' below, what is the law? (Do we follow the
               bottom, or) do we suspect that the 'Kuf' should be a
               'Samech', and some of the ink was moved by a fly?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This question is not resolved.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 105b (Rav):</font></b> If one sold 'for Istira (96 Perutos),
               100 Ma'os', the buyer owes 100 Ma'os. If he sold
               'for 100 Ma'os, Istira', he owes Istira.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 173a (Mishnah):</font></b> If Levi found a note saying 'the
               document of Yosef ben Shimon was paid', he cannot
               collect a loan from either man of this name.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Inference:</font></b> Had he not found this receipt, he could
               have collected.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Contradiction (Mishnah):</font></b> No one can use a document
               to claim money from either Yosef ben Shimon.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (R. Yirmeyah):</font></b> The case is, the loan
               documents have the grandfather's name (proving to
               which one he lent).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (R. Hoshaya):</font></b> The case is, the loan documents have
               the grandfather's name, but the receipt does not.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Bava Metzia 102a (Mishnah):</font></b> If Reuven rented a house
               to Shimon for a year and it was made a leap year,
               Shimon need not pay extra for the extra month. If he
               rented it for 12 months, he must pay for the added
               month. A case occurred in which one rented for 12
               Dinarim for the year, a Dinar per month. R. Shimon
               ben Gamliel and R. Yosi ruled that he pays half for
               the added month.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 102b (Shmuel):</font></b> This is when they come to Beis Din in
               the middle of the 13th month. If Reuven said at the
               beginning of the month 'you must pay extra for this
               month', Shimon must pay for the entire month. If
               Reuven made no claim until the end of the month,
               Shimon is exempt.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The owner is Muchzak in his land.
               (Even if Levi claims at the end of the month,
               Yehudah must pay.)
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> He is unsure which phrase we follow. Even if the
               phrase favoring the renter was said last, the owner
               is Muchzak and the renter must pay.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (50b and Bava Metzia 59b):</font></b> The Halachah follows
               Rav Nachman. The same applies to '100 Ma'os,
               Istira.' We follow the lesser clause, for property
               is in the owner's Chazakah, and the other is
               ha'Motzi mi'Chavero Alav ha'Re'ayah. If he seized,
               he keeps it, for now the other is ha'Motzi
               mi'Chavero. This refers to Metaltelim. Land is in
               the owner's Chazakah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (76b DH v'Shover):</font></b> The Ro'oh
                    holds that regarding a receipt, we assume the
                    higher amount and ha'Motzi mi'Chavero Alav
                    ha'Re'ayah. His Talmid, the Ritva, disagreed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Kesuvos 47a):</font></b> If a document gives Ne'emanus to
               the borrower, i.e. he wrote 'if you will say that
               you paid this, you will be believed', the
               stipulation is valid. If the borrower died, his
               heirs are believed to say that their father paid,
               for he did not need to tear the loan document or get
               a receipt. He relied on the Ne'emanus. However, the
               borrower must swear. Since the lender did not write
               'you ae believed even without an oath', we are
               concerned lest he believed him to nullify the
               document to make it a Milveh Al Peh. The bearer of
               the document has the lower hand. Rav Hai Gaon said
               so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 27:15):</font></b> If above it says
               'Sefel', and below it says 'Kefel', we follow the
               bottom, for it is less. If it says 'Kefel' above and
               'Sefel' below, we suspect that the 'Kuf' should be a
               'Samech', and some of the ink was moved by a fly. He
               collects only the smaller measure of Kefel. The same
               applies to all similar cases. The bearer of the
               document has the lower hand.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Teshuvah 76:2):</font></b> If Reuven brought a loan
               document against Shimon dated 'Nisan 5', and Shimon
               has a receipt dated Nisan 5 saying that Reuven
               pardoned to him all debts until this date, Reuven
               collects. Since it says <i>until</i> this day, this day
               is not included. The way people speak, 'until' does
               not include the day itself. Had the receipt said
               'until now', it would be a Safek whether he pardoned
               before or after the loan given that day. We do not
               make one pay due to Safek. We assume that the loan
               was first.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 42:8):</font></b> In all these cases that we
               say that the bearer has the lower hand, if he seized
               Metaltelim, we do not take them from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav v'Iy):</font></b> The Rif
                    says so (Bava Metzia 59b). The Ramban explains
                    that this is when the borrower willingly gave
                    the larger amount to the bearer. Hagahos
                    Maimoniyos (Hilchos Malveh 27:300) explains
                    that the bearer has the lower hand due to
                    ha'Motzi mi'Chavero. Now that the bearer
                    seized, the borrower is the Motzi. The Magid
                    Mishneh (27:16) says that this is even if he
                    seized in front of witnesses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> All the more so, regarding a receipt we say 
               that the bearer has the upper hand, for he is
               Muchzak. This is unlike those who disagree and say
               that even regarding a receipt, he has the lower
               hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beis Yosef (DH v'Dikdek, and Bedek ha'Bayis):
                    Maharik says that even when the bearer is
                    Muchzak, he has the lower hand. If he saw the
                    Meforshim I cited above, I do not know how he
                    argued with them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (18):</font></b> There is no argument. Maharik
                    discusses one who was obligated without a
                    document to give to Tzedakah according to his
                    wealth. He claims that he need pay for
                    redeeming captives only like everyone else, for
                    a document specified that all will pay equally.
                    Maharik said that redeeming captives is not
                    included in Tzedakah, therefore, the bearer has
                    the lower hand, even though he is Muchzak. His
                    Chazakah does not help, for he seeks to uproot
                    Torah law through the document. His Safek (that
                    redeeming captives is included in Tzedakah)
                    does not uproot his Vadai obligation. Here, the
                    lender says that even without the document,
                    Vadai he owes me, therefore seizure helps even
                    in front of witnesses. Likewise, one who holds
                    a receipt says that he is exempt even without
                    the receipt. Therefore, since he is Muchzak, he
                    has the upper hand. The same applies to
                    Teshuvas ha'Rosh. Shimon claims that Reuven
                    explicitly pardoned also the document in
                    question. The Ritva cited in the Nimukei Yosef
                    agrees that the bearer of a receipt has the
                    upper hand, since he is Muchzak. He argues only
                    about a receipt that says only 'Dinarim', for
                    this connotes only two. This is why the Nimukei
                    Yosef cited the Ritva regarding the Sugya of a
                    document that says Dinarim. Also, we could say
                    that the Rosh and those who say that seizure
                    helps discuss seizure before the Safek arose,
                    or seizure with permission, and he need not
                    have a Vadai claim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (23):</font></b> Since seizure helps even without
                    Reshus, all the more so a receipt helps, for he
                    is Muchzak with Reshus. However, we hold that
                    an unclear receipt does not help against a
                    clear document with a lien against land. If
                    not, the Rif and Tur contradict themselves!
                    (Here they say that seizure helps. In Kesuvos
                    and 71:34,) they say that if a lender gave
                    Ne'emanus, the borrower must swear, for he was
                    trusted only to nullify the document, but it is
                    still a Milveh Al Peh. This is because the
                    lender holds a clear document. This is
                    difficult for the Beis Yosef, who says that
                    regarding pardon, we do not attribute to flies,
                    for ha'Motzi mi'Chavero Alav ha'Re'ayah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (17):</font></b> The Beis Yosef is correct. We write
                    a receipt to nullify a document, therefore, a
                    receipt has the upper hand against a loan
                    document. After the loan document is Batel, the
                    bearer of the receipt has the lower hand
                    regarding swearing (he must swear). This is
                    <i>not</i> because the loan document is clear, for
                    the receipt nullified it! Surely we tear the
                    loan document once we hear that it was paid!
                    The borrower must swear Heses, just like he
                    must swear to counter a verbal claim. Likewise,
                    one who seized must swear Heses.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz:</font></b> There, the borrower is exempt only due to
                    the lender's pardon. He cannot say 'you trusted
                    me even without an oath.' One does not know
                    what is in another's heart! Therefore, the
                    lender is believed to say what he intended. A
                    receipt breaks a document. It is like an
                    erasure. If it is not known what was erased,
                    this ruins the document. The following is
                    difficult. The Shulchan Aruch (49:8) rules like
                    the Ramah, that if there are two Yosef ben
                    Shimon's in a city, and a loan document gives
                    the grandfather's name to distinguish them, but
                    the receipt does not, the one holding the
                    receipt must pay. The Tur exempts. It seems
                    that the Tur rules like the first opinion in
                    the Rema here, and the Ramah holds like the
                    latter opinion. The Rema (who favors the first
                    opinion here) should have argued with the
                    Shulchan Aruch there! I say that the Tur's
                    opinion is primary, for ha'Motzi mi'Chavero
                    Alav ha'Re'ayah.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A DISCREPANCY IN A DOCUMENT </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A DISCREPANCY IN A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it says above...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We can learn one erased letter of the bottom
          from the top, but not two. E.g. if the bottom says
          'Chanan' and the top says 'Chanani', we learn from it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Presumably, we cannot learn two letters,
          because sometimes this is half the name (when the name
          has four letters);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also we should not learn one letter, for
               sometimes this is half the name, i.e. when the name
               has two letters!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, we cannot learn two letters, because
          sometimes this is most of the name (when the name has
          three letters).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> If above it says 'Sefel' (Rashbam - bowl;
          alternatively, the Gematri'a (numerical value (170) of
          the word)), and below it says 'Kefel' (a doubled garment;
          or, its Gematri'a (210)), we follow the bottom (it is
          less. Tosfos - 'SeFeL' stands for 'Samech PaLgei (60
          halves)'; alternatively, Se'ah v'PaLga (a Se'ah and a
          half). 'Kefel' stands for 'Kuf (100) Palgei', or Kor (30
          Sa'im) and a half.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If it says 'Sefel' above and
          'Kefel' below, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Do we follow the bottom, or) do we suspect that
               the 'Kuf' should be a 'Samech', and some of the ink
               was moved by a fly?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	This question is not resolved. (Therefore, the bearer
          of the document has the lower hand. He collects according
          to 'Sefel'.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>AN AMBIGUOUS EXPRESSION IN A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Sharbiya):</font></b> If a document says '600 and a
          Zuz', does this mean '600 Sela'im and a Zuz', or (could
          it mean) '600 Perutos and a Zuz'?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> One would not write (a large number of)
          Perutos in a document. He would give the value in Zuzim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (R. Chananel):</font></b> He collects 600
               (common) Sela'im (each is one eighth silver, i.e.
               half a Zuz) and a Zuz, because the bearer of a
               document has the lower hand.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> We do not know if '600' refers to
               Sela'im (each is four Zuzim) or Zuzim (Rashbam -
               these coins are pure silver; Ramah - they are
               common). The bearer of the document has the lower
               hand (he gets 601 Zuzim).
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FORGERS' TRICKS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye):</font></b> If someone wants Beis Din to have his
          signature (to validate documents), he should not sign at
          the bottom of a parchment, lest a swindler find it, and
          write above it 'I owe to you (a large amount of) money';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven brought a document against
               Shimon, and Shimon was signed below, Reuven collects
               from Shimon's Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A (Yisrael) tax collector asked Abaye 'Show me your
          signature. I will exempt Chachamim bearing your signature
          from the tax.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye went to sign at the top; the tax collector
               was moving the parchment, so the signature would be
               at the bottom.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Abaye:</font></b> Chachamim already anticipated your scheme
               (and taught how to defend oneself)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Abaye):</font></b> One should not spell out (in Arame'ic) a
          number between three and ten at the end of a line in a
          document, lest the bearer add letters to make it larger.
          (E.g. in English, one could add to 'six' to make it say
          'sixty'.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If that is where the number must be written, he
               should repeat it in the document. Surely, at some
               point it will come out in the middle of a line. (If
               a forger added letters in the middle, the forgery
               would be blatant.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	A document said 'a third <i>b</i>'Pardisa (of an orchard);
          the bearer erased the top and bottom of the 'Beis',
          leaving a 'Vov', so it would say <i>v</i>'Pardisa (<i>and</i> an
          orchard).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> Why is there space between the 'Vov' and
               'Pardisa'?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Abaye forced him, and he admitted to his forgery.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A sale document said 'the portion of Reuven and Shimon
          Achei (brothers).' They had another brother 'Achi.' The
          buyer added a 'Vov', making it read 'v'Achi'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> Why is the 'Vov' so close to the previous
               word?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Abaye forced him, and he admitted to his forgery.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rava and Rav Acha bar Ada were signed on a document. It
          came in front of Rava.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rava:</font></b> Indeed, that is my signature, but I never signed
          in front of Rav Acha! (Presumably, because Rav Acha was
          older.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava forced the bearer, and he admitted to his
               forgery.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> Granted, you were able to forge my
               signature. Rav Acha's hand shakes. How could you
               forge his signature?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #1 - the forger:</font></b> (While writing) I was
               holding the rope that people hold when they cross
               the narrow bridge.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #2 - the forger:</font></b> I was standing on a
               bucket (and wobbling).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WRITING A DOCUMENT IN THE ABSENCE OF ONE PARTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may write a Get for a man, even in the
          absence of his wife. We may write a receipt for a woman
          (that she received her Kesuvah), even in the absence of
          her (ex-)husband, as long as we recognize them (this will
          be explained). The husband pays the scribe.
<br>
<br>

sjt:
<font><b>1) SIGNING A PAPER BELOW A BLANK SPACE</b></font><b>
<br>QUESTION:</b> Abaye teaches that when a person wants to show his signature in Beis Din, he should not sign his name on a document with a blank space above his signature, lest an unscrupulous person find that document and fill in the blank space with false information about a debt that the signatory owes him.
</p><p>
When a lender demands payment from a borrower and provides a signed document as proof of the loan, the borrower cannot simply exempt himself by claiming that the lender found his signature on a blank document and wrote a Shtar above the signature. There are many details involved in making such a claim. If the borrower says that he never borrowed money and that the claimant probably found his signature at the bottom of a blank piece of paper, Beis Din accepts his claim if he makes a Shevu'as Heses. The <b>ARUCH HA'SHULCHAN</b> (CM 69:3) points out that Beis Din does not make such a claim for a person who is unsure about how his signature made its way onto a loan document, especially if he expresses even a slight possibility that he might have taken such a loan. If, however, there is a clear incongruity between the signature and the rest of the writing on the document, his claim may be more successful (see <b>SHEVUS YAKOV</b> 1:149).
</p><p>
Does Abaye's warning apply only to documents that a person discards, or also to document that he keeps in his house?
</p><p>
<b>ANSWER:</b> Although this Halachah clearly applies to documents that a person discards, caution is due even with documents that one generally keeps in his home, as is evident from the following case which was brought before Dayan Yisrael Yaakov Fisher zt'l. Two people (Reuven and Shimon) learned together as Chavrusas for a long time. One day, Reuven told Shimon that the time had come for Shimon to repay the ten thousand dollar loan which he had given him. Shimon was stunned. He had never borrowed such a large amount of money from Reuven! After expressing his disbelief, Reuven promptly pulled out a Shtar with Shimon's signature, which stated that Shimon owed ten thousand dollars to Reuven. Shimon could not believe his eyes; the handwriting definitely was his, but he had no recollection of such a loan. The two Chavrusas agreed to go to Dayan Fisher to settle their dispute. After questioning the parties involved and hearing the details of the case, Dayan Fisher dismissed them. He then told his attendant to summon Shimon and tell him to come immediately.
</p><p>
When Shimon arrived, Dayan Fisher asked him, 'Did you ever lend any Sefarim to your Chavrusa?'
</p><p>
'Well,' Shimon said, 'I have been learning with Reuven for a long time, and I certainly must have lent him some Sefarim at some point or another.'
</p><p>
'Do you remember which Sefarim you lent him?'
</p><p>
'No,' Shimon said.
</p><p>
'Did he ever borrow a Sefer and not give it back to you?' Dayan Fisher asked.
</p><p>
'No,' Shimon said.
</p><p>
'Then you must bring me all of your Sefarim, or look through all of them yourself,' Dayan Fisher responded.
</p><p>
Thoroughly bewildered, Shimon said, 'May I ask the Rav what my Sefarim has to do with the dispute about the loan?'
</p><p>
Dayan Fisher explained: He suspected that Reuven borrowed a Sefer from Shimon and cut out the page on which Shimon had written his name, and wrote above Shimon's signature a Shtar stating that Shimon owed him ten thousand dollars.
</p><p>
Indeed, after many hours of searching through his Sefarim, Shimon found a Sefer that he had lent to Reuven from which the title was cut out. Although most people sign their names on the top of the first page of their Sefarim, Shimon's practice was to write his Sefarim in the middle or towards the bottom. This left him an easy target for his unscrupulous study partner, who would have taken advantage of him if not for the sharp thinking of Dayan Fisher, who successfully extracted a confession from Reuven after confronting him with his conclusion. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'> WRITING A DOCUMENT IN THE ABSENCE OF THE LENDER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> We may write a loan document for a
               borrower, even in the absence of the lender. We may
               not write for the lender in the borrower's absence.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If he says that the document is
               Amanah (the borrower trusted the prospective lender
               and gave to him the document before the loan was
               given), he is not believed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> He discusses when the witnesses say that
               it is Amanah, and we cannot verify their signatures
               without them. They are not believed, due to Rav
               Kahana's law:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Kahana):</font></b> One may not keep a document of
                    Amanah in his house - 'Do not let Avlah (fraud)
                    dwell in your home'.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rav Sheshes brei d'Rav Idi):</font></b> Witnesses do not
                    sign on Avlah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Metzia 13a - Question:</font></b> Why may one write a
               document for the borrower in the lender's absence?
               Perhaps he will lend after the date of the document,
               and improperly take land from people who bought
               before the loan!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Asi):</font></b> The Mishnah discusses Hakna'ah
               documents, in which the borrower puts a lien on his
               land immediately (the collection is proper).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Sanhedrin 29b (Rav Nachman):</font></b> It is normal for one to
               falsely claim that he owes money, so people will not
               think that he is rich.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (10:18) bring our Mishnah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Rif and Rosh (Kesuvos 6a and 2:9) bring the
               Gemara in Kesuvos.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 23:5):</font></b> We may write a loan
               document for a borrower, even in the absence of the
               lender, but not for the lender in the absence of the
               borrower. This discusses a document with a Kinyan,
               for from the time of the Kinyan the borrower's
               property is Meshubad. If there is no Kinyan, we may
               not write even for the borrower until the lender is
               also there and he gives the document to the lender
               in front of us. We are concerned lest he write to
               borrow in Nisan, and not borrow until Tishrei, and
               the lender will take property sold from Nisan. This
               is improper, for he did not receive the document
               until Tishrei.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Some say that there is no
                    Chidush that we do not write for the lender in
                    the borrower's absence. It is merely for
                    parallel structure with the Reisha. I say that
                    it forbids even if the lender says 'write and
                    sign the document, and it will be in your
                    hands. If the borrower will come and say that
                    it is true, acquire from him and give it to me.
                    If not, tear it.' We forbid because it is false
                    when it is written, and perhaps he is scheming.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (CM 39 DH v'Ein):</font></b> We would allow
                    someone to borrow a second time with a document
                    that was paid (if not because the lien was
                    pardoned - Gitin 26b). We are not concerned
                    that it looks false! We can say that here is
                    different, for from when it was signed it looks
                    false.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Lechem Mishneh Edus 6:8):</font></b> The Rif
                    holds that we are not concerned for a
                    validation of Beis Din that looks false. The
                    Rosh says that we are concerned. Even the Rosh
                    is concerned for this only for acts of Beis
                    Din! Rather, the Magid Mishneh holds that
                    perhaps the lender hopes that the witnesses
                    will lose the document and he will find it, or
                    another ruse. The Beis Yosef understood that
                    the concern is that it looks false. Also his
                    answer is wrong, for in Kesuvos (85a) we permit
                    writing and signing a document for a woman
                    before she swears; we are not concerned that it
                    looks false. We compare this to signing a Get
                    found in the trash. This shows that we do not
                    distinguish whether it was false from when it
                    was signed.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 39:13):</font></b> We may write a loan
               document for a borrower, even in the absence of the
               lender.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu
                    u'Bilvad):</font></b> Here, the Tur requires the witnesses
                    to recognize only the borrower, like the Magid
                    Mishneh (Hilchos Malveh 24:3). However, in
                    Siman 49 he requires that they recognize also
                    the lender.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (21):</font></b> We must recognize the lender, for
                    perhaps the lender owes others and they scheme
                    to write a different name in order that the
                    lender's creditors will not be able to collect
                    from this loan. Also, one does not want others
                    to think that Ploni owes to him if it is not
                    true. This is only when both are in Beis Din or
                    in front of witnesses, for then they write 'he
                    admitted <i>to him</i>'. However, if the borrower
                    alone says 'write that I owe to Ploni', we need
                    not suspect that he seeks to help the true
                    lender evade a creditor, for one does not sin
                    to help another. Also, then we do not write 'he
                    admitted to him', just 'David admitted (that he
                    owes to Ploni).' An admission not in front of
                    the lender does not create publicity about how
                    much he owes to him. Perhaps the borrower
                    merely does not want people to think that he is
                    rich.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (49:3):</font></b> If there is no Kinyan in the
                    document, we must recognize the lender, lest
                    the borrower plans to give it to the lender
                    tomorrow, and the document will be predated.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav Rabeinu
                    v'Einam):</font></b> We may write a document for a
                    borrower in the lender's absence only on
                    condition to give it to the borrower.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Tur:</font></b> If David said 'acquire from me that I owe
                    this amount to Ploni; write a document and give
                    it to me', they write it and give it to David.
                    Ploni acquires only if David gives it to him.
                    The witnesses may not directly give it to
                    Ploni. When David commands to give it to Ploni,
                    David's property is Meshubad from the time of
                    the Kinyan.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Bedek ha'Bayis:</font></b> They may not give it to Ploni,
                    for David was not Meshabed himself until he
                    gets the loan. If they gave it to Ploni, this
                    is fraud.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Tur:</font></b> If David said 'acquire from me that I owe
                    to Ploni; write and give it to <i>him</i>', or even
                    if he said Stam 'write', they write and give it
                    to Ploni, and not to David.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav Oh):</font></b> Stam
                    Kinyan is destined to be written and given to
                    the lender. This is even if he did not say
                    'write'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> However, if the lender protests that we not
               write for the borrower, we do not write Bal Korcho
               (against his will).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (35):</font></b> A man (can say that) he does not want
                    people to think that he is owed, especially if
                    it is not true.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (58):</font></b> We learn from Sanhedrin 29b.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> We may not write for the
               lender unless the borrower is there. Even if the
               lender says 'write and sign the document, and it
               will be in your hands. If the borrower will come and
               say that it is true, acquire from him and give it to
               me. If not, tear it', we do not heed him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (36):</font></b> The concern is only for signing it.
                    We may write in the absence of the lender, like
                    the Beis Yosef said (above, DH v'Ein).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> The Beis Yosef (Sof DH uvi'Teshuvos,
                    citing Teshuvas ha'Rashba 945) says that if the
                    lender says 'do not write and sign for Ploni
                    (who accepted with a Kinyan that he owes me),
                    we do not <i>write</i> for him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (38):</font></b> The Ritva (Kesuvos 21b DH
                    veha'Omar) says that we are concerned only
                    about signing Sheker,  but not writing Sheker.
                    I disagree. We are not concerned even for
                    signing. Tosfos and the Rosh (Kesuvos 85a DH
                    Alma and 9:7) explicitly say so. A validation
                    is different, for if the judges sign before
                    they hear testimony, the validation is total
                    Sheker. The Rashba and Ran (Gitin 26b DH Leisa
                    and 13b DH Mihu) say that Bava Basra 172a
                    (writing in a document the place where it was
                    authorized, and not where it was written) is
                    different, for even retroactively it is Sheker.
                    Rather, the Bach explains that the primary
                    reason is that here, since it is Sheker, we are
                    concerned lest the lender schemes, so we do not
                    write it. When the borrower asks us to write,
                    there is no concern.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (38):</font></b> The Shulchan Aruch discusses
                    stipulating about if the borrower will come the
                    same day. If not, the document would be
                    predated.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>LOOKING AT WOMEN </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We may write a loan document for a borrower, even in
          the absence of the lender. We may not write for the
          lender in the absence of the borrower. The borrower pays
          the scribe.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	We may write a sale document for a seller, even in the
          absence of the buyer, but not vice-versa. The buyer pays
          the scribe.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	We write documents of Kidushin or Nisu'in (a Kesuvah)
          only with consent of both parties. The Chasan pays the
          scribe.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	We write documents of Arisus (sharecropping) or rental
          of land only with consent of both parties. The worker or
          renter pays the scribe.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	We write documents of Birurin (this will be explained)
          and all actions of Beis Din only with consent of both
          parties. Both parties share the scribe's fee;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Shimon ben Gamliel says, one copy is written for
          each party.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does it mean 'as long as we
          recognize them'?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah citing Rav):</font></b> Regarding a Get, we
          must recognize the husband (that this is his name).
          Regarding a receipt, we must recognize the (ex-)wife.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Safra...):</font></b> We must recognize also the
          wife in a Get, and the husband in a receipt!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashbam):</font></b> If not, he could write a
               Get for another man's wife, to (fraudulently) permit
               her, or she could write and give a receipt to
               another man!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Tosfos, according to Bach):</font></b> If not,
               he could write a Get for the wife of another man
               (with the same name as himself), to enable her to
               (fraudulently) collect her Kesuvah, or she could
               write and give a receipt to another man (whose wife
               has the same name as herself)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Abaye citing Rav):</font></b> Regarding a Get, we must
          recognize the husband, and also the wife. Regarding a
          receipt, we must recognize the (ex-)wife, and also the
          husband.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> We should be concerned lest there are two
          people (i.e. couples) in the city with the same names
          (Yosef ben Shimon and Leah bas Yakov), and one man will
          write a Get for the other's wife!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav Acha bar Huna citing Rav):</font></b> Due to this
          concern, if there are two people named Yosef ben Shimon
          in the city, one can divorce his wife only when the other
          is present.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Even if there is only one Yosef ben Shimon,
          perhaps Reuven will go to another city, call himself
          Yosef ben Shimon, and (after this is established to be
          his name) write a Get for Yosef's wife!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rav Huna bar Chinena citing Rav):</font></b> Once one
          established his name in a city for 30 days, we are not
          concerned lest this is false. (He would be afraid to lie
          for so long, lest the truth be discovered.)
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> If someone established his name in a city for
          less than 30 days and wants to divorce his wife, what is
          the law?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> If he answers when the name is called,
          we assume that it is his name.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Rejection (Rav Zvid):</font></b> A swindler is very careful (he
          will answer. Therefore, one must wait 30 days before he
          can divorce.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CHACHAMIM DO NOT RECOGNIZE WOMEN SO WELL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A woman was claiming her Kesuvah. R. Yirmeyah bar Aba
          was signed on a receipt saying that she was paid. She
          said that it was not written for her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yirmeyah bar Aba:</font></b> I also said (to the other
               witnesses who signed) that it was not written for
               you. They say that I erred, for you grew older and
               your voice changed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Abaye):</font></b> Even though a witness cannot retract his
               testimony after he testified, a Chacham normally 
               does not recognize women so well, so he is believed
               to retract what he originally said (that it was not
               her).
<br>

<p>

sjt:
</p><p>
<font><b>2) REBBI YIRMEYAH BAR ABA'S TESTIMONY</b></font><b>
<br>OPINIONS:</b> The Gemara discusses how witnesses may accurately identify the persons mentioned in a Shtar. It records two incidents wherein Rebbi Yirmeyah bar Aba signed a receipt attesting that a woman had collected her Kesuvah from her former husband. In the first incident, the woman claimed that she never received her Kesuvah and that the receipt that her former husband is holding must be the receipt of a different woman who was divorced from a different man, who happened to have the same names as they have.
</p><p>
The commentaries understand the rest of the incident, as well as Abaye's comments, in different ways.
</p><p>
(a) The <b>RASHBAM</b> (DH Hahu Tavra) understands that Rebbi Yirmeyah told the woman that he had told the other witnesses who signed the receipt that this was not the woman for whom they signed the receipt. He continued, however, and told her that the other witnesses argued that he had made a mistake and that this indeed was the woman for who they had signed the receipt. She merely looked different because she was older and her voice had changed. Rebbi Yirmeyah then told the woman that he agreed with the other witnesses.
</p><p>
Abaye comments that although, generally, a witness is not permitted to retract his testimony, a Talmid Chacham who does not normally examine the woman for whom he is signing may retract his testimony.
</p><p>
In the second incident, Rebbi Yirmeyah signed a receipt as a witness and was approached with the same claim by the woman. This time, Rebbi Yirmeyah firmly said, 'It <i>was</i> you.' Abaye comments that when a Talmid Chacham expresses certainty about the identity of the woman for whom he signed, his testimony is accepted.
</p><p>
<b>TOSFOS</b> (DH Keivan) has difficulty with the last statement of Abaye. If a Talmid Chacham may retract his testimony because he is not expected to be able to identify the woman for whom he signed, then when he is certain that he can identify her, what question could there be with regard to the validity of his testimony? What is Abaye adding to the Gemara?
</p><p>
(b) Tosfos therefore states that Abaye's second statement is the opposite of his first statement. When a Talmid Chacham testifies about only a probable identification, he may change his mind later. If he is absolutely certain about the woman's identity, then he may not change his mind later.
</p><p>
(c) The <b>RASHASH</b> understands the Gemara differently. He understands that Rebbi Yirmeyah told the woman, 'When I originally signed the receipt, I did not think that the woman who was present was you. However, the other witnesses told me that it indeed was you. They identified you by your voice, and they said you had the same voice as the woman for whom I signed the receipt, and that it changed slightly because you grew older.' Rebbi Yirmeyah then added, 'However, I now realize that the woman for whom I signed indeed was <i>not</i> you.'
</p><p>
The Rashash understands that in Abaye's first comment, Abaye allows Rebbi Yirmeyah to retract his positive identification of the woman when he signed the receipt, since signing in essence is testimony, and a Talmid Chacham is not expected to identify the woman correctly. The <b>NIMUKEI YOSEF</b> suggests a similar explanation.
</p><p>
The Rashash points out that according to this explanation, Tosfos' question (DH Keivan) is not a question. The first case refers to a Talmid Chacham who never thought that the woman making the claim now was the woman for whom he signed. He may retract his testimony since he does not always analyze the identity of a woman. However, when he is certain that this is the woman for whom he signed (when he signs or witnesses something), he may not say later that he made a mistake. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHACHAMIM DO NOT RECOGNIZE WOMEN SO WELL (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Yirmeyah bar Aba was signed on a receipt. The woman
          said that it was not written for her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yirmeyah bar Aba:</font></b> It was written for you!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Even though a Chacham normally does not
          recognize women so well, if he is sure, he is sure!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Abaye):</font></b> When a Chacham goes to be Mekadesh a woman, he
          should take an ignoramus with him, lest they give to him
          a different woman at the Nisu'in. (The ignoramus would
          recognize that she is not the same woman.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHO PAYS THE SCRIBE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The husband pays the scribe.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> 'V'Chosav... v'Nosan' (the one who writes the
          Get must be the one who gives it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nowadays, the woman pays. Chachamim enacted this,
               lest the husband delay giving it (because he does
               not want to pay for it).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may write a loan document for a borrower,
          even in the absence of the lender... (the borrower pays
          the scribe).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious (he benefits from the loan)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This is a Chidush regarding an Iska (the lender
          shares the profits).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may write a sale document for a seller,
          even in the absence of the buyer... (the buyer pays the
          scribe).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious (he benefits from the sale)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is when the field is sold due to
          its low quality (the seller benefits).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We write documents of Kidushin or Nisu'in
          only with consent of both parties (the Chasan pays the
          scribe).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious (he benefits more)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is when he is a Chacham. His
          father-in-law benefits more.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We write documents of Arisus or rental of
          land only with consent of both parties (the worker or
          renter pays the scribe).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is when he must leave the field
          fallow this year (he does not benefit now).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOCUMENTS OF BEIS DIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We write documents of Birurin... only with
          consent of both parties.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is a document of Birurin?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> It Mevarer (clarifies)
          the claims.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (R. Yirmeyah bar Aba):</font></b> It says which judge
          each party Birer (chose) to hear the case. (The two
          judges choose the third judge.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> One copy is written
          for each party.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Chachamim and R. Shimon ben Gamliel argue
          about whether or not Kofin Al Midas Sedom (we force one
          to benefit others if he will not lose):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say that one (either party) can force
               the other to share the cost of one document. R.
               Shimon ben Gamliel says that one cannot.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all agree that Kofin Al Midas Sedom;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says that one can refuse to
               have the claims of both sides written together
               (Rashbam - lest constantly seeing the other's claims
               will cause friction).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DOES ASMACHTA ACQUIRE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yosi):</font></b> If Reuven paid part of his debt to
          Shimon, and fixed a date and gave the document to Levi
          and said 'if I do not pay the rest by this date, give the
          document to Shimon (who may then collect the full
          amount)', and Reuven did not pay in time, Levi gives the
          document to Shimon;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, he does not give it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yosi says that Asmachta (an exaggerated
          promise) is binding. R. Yehudah holds that it is not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The Halachah follows (text of Tosfos -
          does not follow) R. Yosi.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	When people would come in front of R. Ami, he would say
          'R. Yochanan taught that the Halachah follows R. Yosi.
          How can I argue?!'
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Halachah does not follow R. Yosi.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>A FADED DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Ploni's document faded (or was about to
          fade), he gets witnesses who know (or shows them before
          it fades) what was written, and comes to Beis Din. Beis
          Din writes a Kiyum: Ploni's document faded. (It was
          dated) on this day; the witnesses were Almoni and...
<br>
<br>

sjt:
<font><b>1) HAVING AN 'AM HA'ARETZ' LOOK AT ONE'S PROSPECTIVE WIFE</b></font><b>
<br>QUESTIONS:</b> Abaye rules that even though it is not the manner of a Talmid Chacham to look at a woman, if a Talmid Chacham testifies about the identity of a certain woman and says that he clearly recognizes her (as in the case of Rav Yirmeyah bar Aba), he is believed. The Gemara records another statement of Abaye in this regard. Abaye says that when a Talmid Chacham wants to betroth a woman, he should bring an Am ha'Aretz with him so that the Am ha'Aretz will look at the woman and make sure that she is the one whom the Talmid Chacham intends to marry.
</p><p>
(a) How can the Talmid Chacham marry a woman without looking at her himself? The Gemara in Kidushin (41a) clearly states that a man may not betroth a woman without first looking at her, lest he later find something unattractive about her that disgusts him and transgress the Mitzvah of 'v'Ahavta l'Re'acha Kamocha' (Vayikra 19:18).
</p><p>
On the other hand, if it is improper to look at a woman and that is why the Talmid Chacham himself does not look, then how can the Talmid Chacham ask another Jew to do it for him? A person is not allowed to ask another person to do an Aveirah for him (see Eruvin 32b, Shabbos 4a, and Tosfos there). The Gemara in Avodah Zarah (20a) says that it is prohibited to look at a woman since doing so might lead to sin, as derived from the verse, 'v'Nishmarta mi'Kol Davar Ra' (Devarim 23:10).
</p><p>
(b) Why does the <b>RAMBAM</b> not mention this Halachah at all? (<b>HASAGOS HA'RA'AVAD</b>, Hilchos Isurei Bi'ah 21:3)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Acharonim suggest that the prohibition against looking at a woman applies only to <i>gazing</i> at a woman's beauty in order to derive pleasure. One is not prohibited from glancing at a woman without gazing at her beauty. Moreover, it is <i>proper</i> to look at a woman before one marries her, in order to ensure that she has no uncomely features, as the Gemara in Kidushin teaches, as long as one does not gaze at her in order to derive pleasure. Talmidei Chachamim, however, are stringent to avoid even glancing at or seeing a woman. Consequently, it will not help for a Talmid Chacham to look at his prospective bride to determine whether she has any unattractive features, because a Talmid Chacham is unaccustomed to the appearance of a woman and thus he does not know the difference between an attractive women and an unattractive one. Similarly, he will not be able to tell the difference if the woman's family decides to exchange her for a different woman. An Am ha'Aretz, in contrast, is not stringent upon himself, and he knows how to distinguish between the appearance of one woman and another. (<b>MAGID MISHNEH</b>, Hilchos Isurei Bi'ah 21:3; see <b>IGROS MOSHE</b> OC 1:26, 2:4)
</p><p>
(b) The Acharonim give various answers to explain the Rambam's omission of this Halachah.
</p><p>
1. The <b>MIGDAL <b><b>OZ</b></b></b> explains that the Rambam makes no mention of this Halachah because the Rambam is discussing ordinary men when he writes that it is proper for a man to look at his prospective wife. The Rambam is not discussing Talmidei Chachamim, whose practice is never to look at a woman.
</p><p>
The Migdal Oz differentiates between looking at a woman to whom one is already engaged ('Meshudach'), whom one is ready to be Mekadesh, and looking at a woman to whom one is not yet engaged in order to check her to see if he should become engaged to her. The Rambam here (Hilchos Isurei Bi'ah 21:3) is not discussing the case of looking at a woman to whom one is already engaged and committed (he mentions that Halachah in Hilchos Ishus 3:19), but rather he is discussing the case of looking at a woman to check to see if he should become engaged to her in the first place. Accordingly, it is obvious that a Talmid Chacham should not look at her but rather he should have an Am ha'Aretz look at her instead. In contrast, even a Talmid Chacham should look at his Kalah after he is engaged in order to decide whether she is fit for him to betroth (this is in contrast to the view of the Magid Mishneh mentioned above).
</p><p>
2. The <b>MIRKEVES HA'MISHNEH</b> explains that the Halachah that the Rambam discusses here is the same Halachah which he discusses in Hilchos Ishus. The Rambam maintains that even a Talmid Chacham is supposed to look at his prospective wife before he marries her in order to make sure that she has no blemishes, and to make sure that the woman's family did not exchange her for a different woman. The Rambam understands that the Gemara here does <i>not</i> mean that a Talmid Chacham should <i>not</i> look at his prospective wife, but rather it means that <i>in addition</i> to looking at her he should bring an Am ha'Aretz to check her appearance to make sure that her family does not exchange her for another woman. The Talmid Chacham himself should look at her to make sure that she is not unsightly to him, but he should have an Am ha'Aretz look at her to ensure that the family does not exchange her for another woman, since the ability to distinguish between two women of similar appearances is the expertise of the Am ha'Aretz and not the Talmid Chacham. This is why the Gemara says that the Talmid Chacham should 'bring an Am ha'Aretz with him' instead of saying that he should 'send an Am ha'Aretz' to check the woman. The Gemara's wording implies that the Talmid Chacham should accompany the Am ha'Aretz and look at the woman as well. This is also why the Gemara adds the reason 'so that they not exchange her'; this is the expertise of the Am ha'Aretz and his purpose in coming with the Talmid Chacham.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ASMACHTA ACQUIRE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yosi):</font></b> If Reuven paid part of his debt
               to Shimon, and fixed a date and gave the document to
               Levi and said 'if I do not pay the rest by this
               date, give the document to Shimon (who may then
               collect the full amount)', and Reuven did not pay in
               time, Levi gives the document to Shimon;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he does not give it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi says that Asmachta (an exaggerated promise)
               is binding. R. Yehudah holds that it is not.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The Halachah is (some texts - not)
               like R. Yosi.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> When people would come in front of R. Ami, he would
               say 'R. Yochanan taught that the Halachah follows R.
               Yosi. How can I argue?!'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> The Halachah does not follow R. Yosi.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Nedarim 27a (Rav Huna):</font></b> If one had documents in his
               favor in Beis Din, and said 'if I do not return
               within 30 days, these proofs should be void', and an
               Ones prevented him from returning in time, his
               proofs are void.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> Rav Nachman said that the Halachah does
               not follow R. Yosi, who says that Asmachta acquires!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> Here is different. Since he said that the
               proofs should be void, this is like an admission
               that they are invalid.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> The Halachah is, Asmachta acquires when there is no
               Ones, and they acquired from him in an esteemed Beis
               Din.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (10:19):</font></b> The Halachah does not follow
               R. Yosi. Asmachta acquires when there is no Ones,
               and they acquired from him in an esteemed Beis Din.
               A Ga'on says that this is only when he deposited his
               proofs in Beis Din. Presumably, this is correct.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (Nedarim 9b DH v'hilchesa):</font></b> Rav
                    Huna's case wzs not really Asmachta, for his
                    Din was based on the proofs he agreed to! The
                    esteemed Beis Din is an expert who can judge
                    alone, force people to come to be judged, make
                    money Hefker, and fine people who seek to evade
                    the Din. The same applies to three regular
                    judges. Kinyan in Beis Din does not help for
                    real Asmachta, which does not depends on Beis
                    Din! Rav Hai Gaon says so; this is the Ga'on
                    cited in the Rif.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> Tosfos rules that even without
               depositing his proofs, Asmachta acquires in an
               esteemed Beis Din. Our custom is like this. Rabbeinu
               Meir says that the esteemed Beis Din must be
               proficient in laws of Asmachta.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 11:5):</font></b> If Reuven paid part 
               of his debt and gave the document to Ploni, and said
               'if I will not pay (the rest) by day Almoni, give
               the document to the lender', and the time came and
               he did not give, Ploni should not give the document
               to the lender, for this is Asmachta.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (13):</font></b> If they acquired from him in an
               esteemed Beis Din it acquires, if he deposited his
               proofs in Beis Din and there was no Ones.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Nedarim 27b DH v'Hu):</font></b> The Rambam (Perush
                    ha'Mishnayos 168a) says that the Beis Din must
                    have Semichah in Eretz Yisrael. If so, the
                    Gemara should have said 'a Beis Din Mumcheh'
                    (expert)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (8):</font></b> In Nedarim we say that
                    if they acquired from Reuven about Asmachta in
                    an esteemed Beis Din, it is binding, if it was
                    not Ones. Also Rav Tzemach Gaon, the Rashbam
                    and Rivam, R. Tam, Ri, my Rebbi and Avi ha'Ezri
                    say so. Rav Hai Gaon says that whenever it says
                    that Asmachta acquires, this is R. Yosi's
                    opinion, and the Halachah does not follow him.
                    How can he oppose the Gemara's ruling in
                    Nedarim?! The Rif and R. Chananel rule like
                    unlike Rav Hai Gaon.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Nedarim 3:10):</font></b> Some say that Asmachta acquires
               only in a case like Rav Huna's, in which he
               deposited his proofs in Beis Din. If it always
               acquired (when there is no Ones, and they acquired
               in an esteemed Beis Din), why was the Halachah
               taught in Nedarim? It should have been taught in
               Bava Basra, where R. Yosi and R. Yehudah argue! This
               is not a proof. It was taught here, for here we
               discussed Ones. It applies to all Asmachta.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Nedarim 27b DH v'Hilchesa):</font></b> Asmachta does
                    not acquire even due to a small Ones, e.g his
                    son became sick. We need not teach about a big
                    Ones. The Gemara compared this to vows. Just
                    like one who vows did not intend if (he will
                    not fulfill the Tanai because) his son is sick,
                    one did not intend to neglect his son to go to
                    Beis Din.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 55:1):</font></b> If Reuven paid part of his
               debt and gave the document to Ploni, and said 'if I
               will not pay by day Almoni, give the document to the
               lender, and he did not pay by then, Ploni should not
               give the document to him, for this is Asmachta (i.e.
               he obligated himself based on his will, it is
               partially in his hands, and he relied (that he will
               fulfill it, so) that the obligation will not take
               effect, and he did not resolve to be Makneh), and it
               does not acquire. If they acquired from him
               (Chalipin) in an esteemed Beis Din, it is binding,
               if he left his proofs in Beis Din. This is if there
               was no Ones. If he left his document or receipt in
               Beis Din, and they acquired from him that if he does
               not come by day Almoni, it should be given to his
               opponent, and he did not come before that day, we
               give it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (Sof Siman 54, DH u'Mah she'Chosav
                    Rabeinu b'Shem ha'Ramah):</font></b> The Ramah says that
                    depositing proofs helps only if he said 'my
                    proofs will be Batel (if I do not fulfill my
                    promise)', and an esteemed Beis Din acquired
                    from him. I.e. it must be exactly like Rav
                    Huna's case. The Tur connotes that the Rif
                    holds that it is enough to deposit the proofs,
                    even not in Beis Din, even if he did not say
                    'my proofs will be Batel.' I say that the Rif
                    agrees with the Ramah, since he holds that
                    Asmachta acquires only in cases like that of
                    Rav Huna.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (1):</font></b> Since it says in Nedarim 'and the
                    Halachah is', this shows that it refers to the
                    case given (of Rav Huna).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he was detained due to the
               river or sickness, they do not give it. The same
               applies to all similar cases.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> I proved in YD 232:20 that this
                    refers to an Ones that is common but not so
                    common, and all the more so if it is not common
                    at all, it is Ones for vows and monetary
                    matters. A common Ones is not Ones. He should
                    have stipulated! The Rosh and R. Yerucham say
                    that if the river got bigger due to rain or
                    melting snow, which is uncommon, this is Ones.
                    If there was no ferry to cross it, this is
                    common, and he should have stipulated.
                    Maharshach (2:45) argues with the Rosh and R.
                    Yerucham. He errs.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Mishneh l'Melech (Hilchos Shevuos 3:1):
                    Maharshach holds that Ones always exempts, even
                    if it is uncommon except for Get. He asked why
                    R. Yerucham said that the Mishnah in Nedarim
                    discusses a river that enlarged due to rain and
                    melting snow, which is uncommon. Even a common
                    Ones is Ones! Maharshach proved that a common
                    Ones is not Ones from Teshuvas ha'Rosh about a
                    Shiduch, and Rashi, who discusses an evident
                    Ones, like the ferry ceasing. This is no proof.
                    The Rosh says that there is an Umdena (we know
                    his intent). Also in Rashi's case, surely one
                    forfeits his proofs only if he will not come
                    <i>without</i> any Ones. Maharival holds that a
                    common Ones exempts only when there is an
                    Umdena (that he did not intend in such a case).
                    This is unlike R. Yerucham and the Rosh, who
                    say that the Mishnah in Nedarim discusses an
                    uncommon Ones, even though there is an Umdena
                    that he did not intend to forbid his friend if
                    Ones prevents him from eating with him. Also,
                    why did the Gemara challenge Rava from the case
                    of 'if I will not come within 30 days'? There
                    is different, for there is no Umdena. When one
                    left his proofs in Beis Din, there is an 
                    Umdena! The Rashba (771) says that a common
                    Ones is not Ones. Mahara Sason explains that he
                    should have stipulated, but a semi-common Ones
                    is Ones. R. Yerucham and the Rosh said that the
                    Mishnah discusses a semi-common Ones, for there
                    is not a good Umdena. Rav Huna holds that even
                    a totally uncommon Ones does not exempt. This
                    applies to only to one who forfeits his proof,
                    for he admits that his proof is invalid. An
                    admission is like 100 witnesses. Rava argues.
                    He holds that it is not admission, rather,
                    pardon. The Umdena is that he pardons only if
                    he will not fulfill, without any Ones. Or, Rava
                    could agree that it is due to admission, but
                    only if there was no Ones. Pnei Moshe proves
                    that Rava discusses even a common Ones from the
                    case of a Get 'on condition that I not return
                    within 12 months'. This is astounding. The
                    beginning of Kesuvos says that death is not
                    called common!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'>Shulchan Aruch (ibid):</font></b> This is if it is in an
               esteemed Beis Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Mi):</font></b> A case occurred in which
                    Shimon had two documents against Reuven, for
                    500 each. Reuven paid one, left both documents
                    with Ploni, and said 'if I will not pay the
                    other by this day, return both to Shimon.' He
                    did not pay in time. Rabbeinu Meir said that an
                    esteemed Beis Din is three who know what is
                    Asmachta (Rosh 72:4). E.g. it depends on
                    whether he exaggerated, and whether he was able
                    to do what he accepted. Since they know laws of
                    Asmachta, and he acquired unlike Asmachta,
                    Hefker Beis Din is Hefker, and it is binding.
                    Here, there was no Kinyan, and in any case it
                    was not in an esteemed Beis Din, so Reuven owes
                    only 500.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (ibid., DH veha'Rashba):</font></b> The Rashba
                    (3:60) says that an esteemed Beis Din must have
                    power to make money Hefker. The Magid Mishneh
                    (Hilchos Mechirah 11:13) says that the Rashba
                    does not require Semichah, as long as they are
                    esteemed to make Hefker, e.g. experts who judge
                    the Rabim. The Nimukei Yosef (78a DH Gemara)
                    says that it is one who can judge monetary
                    cases alone, like it says in Nedarim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he need not deposit his
               document, since they acquired in an esteemed Beis
               Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (3):</font></b> This opinion holds that it says 'and
                    the Halachah is' due to the case of Ones.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ASMACHTA </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> The Kiyum is 'we three judges sat,
          Reuven and..., Ploni showed us that his document was
          faded, the date was..., the witnesses were Almoni and...'
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If the Kiyum says 'we heard the witnesses' testimony.
          It was proper', Ploni can collect through the Kiyum. He
          does not need proof (of the date of the original
          document). If not, he must bring proof (of the original
          date).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If a document was torn (by a person), it is invalid. If
          it became torn by itself, it is valid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If it was erased or smudged, if the imprint of the
          writing is still visible, it is valid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What are the cases of being torn (by a
          person) and torn by itself?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Torn by a person' is when Beis Din tears it.
          'Torn by itself' refers to any other tear.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> How does Beis Din tear a document?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> They tear the place of the
          witnesses, the date and the Toref (the crucial
          information, i.e. the parties, the amount of the
          loan...).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> They tear it lengthwise and
          widthwise.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Some Yishmaelim came to Pumbadisa. They would forcibly
          take people's land. The owners brought their documents to
          Abaye, and asked him to write new ones, in case the
          originals will be taken.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> I cannot. Rav Safra taught (169a) that we
               do not write two documents for one field, lest the
               field be collected by a creditor of the seller
               (Reuven), and the buyer (Shimon) will take land from
               someone who bought from Reuven after Shimon (and
               give to him one document), then Shimon will take
               land from someone else who bought from Reuven (and
               give to him the other document).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The owners were pressuring Abaye. He told his
               scribe to write documents for them on erased
               parchment, and the witnesses should sign on clear
               parchment (such documents are invalid).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rav Acha bar Minyomi):</font></b> Perhaps the
               imprint of the writing of the first document (before
               the parchment was erased) will still be visible. The
               Beraisa teaches that Beis Din makes a Kiyum in such
               a case!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Abaye:</font></b> The scribe will not write over an erased
               document. Rather, he will write 'Aleph-Beis', erase
               it, and then write for these people.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>REPLACING A LOST DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Shimon claims that he lost his loan
          document, even though witnesses say that they wrote,
          signed and gave to him the document, we do not write
          another document for him;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	This refers to a loan document. We do write another
          document of sale, but without Acharayus (liability to
          compensate the buyer if the land is legally taken from
          him).
<br>

<p>

sjt:
</p><p>
<font><b>2) A SHTAR WRITTEN WITHOUT 'ACHRAYUS'</b></font><b>
<br>QUESTION:</b> The Gemara relates that when certain Yishmaelites came to Pumbedisa (see <b>RABEINU GERSHOM</b>), they forcefully took the fields of other people. The original owners of the fields came to Abaye and showed him their deeds of ownership. They requested that he write for them a copy of the deed of ownership, lest the thieves steal the original documents from them. Abaye said that he could not write a second Shtar for the owner of each field, because Rav Safra ruled that one may not write two Shtaros on one field, lest the bearer of the Shtar use it to collect twice unlawfully. (That is, in a case in which the bearer of the Shtar purchased the field from a person who owed money, and then the seller's creditor came and confiscated the field from the purchaser. The purchaser is entitled to go to other purchasers (who bought their fields from the seller/debtor after he did) and confiscate a field from them with his Shtar. If Beis Din writes for a landowner a second Shtar on one field, then he might go a second time and confiscate another field from another purchaser unlawfully with the second Shtar.) The landowners continued to bother Abaye about writing a second Shtar. In order to stop them from bothering him, he told his scribe to write for them a second Shtar, with the text on an erased part of a paper and with the witnesses below on a fresh part of the paper (which constitutes an invalid Shtar).
</p><p>
Why did Abaye not simply acquiesce to the landowners' request and write for them a second Shtar, but mention explicitly in the second Shtar that the Shtar has no power of Achrayus (as the Gemara itself says later on this Daf and on 169b)? A Shtar which explicitly waives the right of Achrayus is a Shtar Ra'ayah which proves that the bearer is the rightful owner of the land, but it does not give the bearer the ability to confiscate a field from Lekuchos.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> answers that the landowners wanted a second Shtar with Achrayus so that they would have the same power that they had with the first Shtar (that is, in the event that a creditor of the seller confiscates the field from them, they will have the power to take a field from later purchasers).
</p><p>
(b) The <b>PNEI SHLOMO</b> explains that Abaye maintains that the Halachah follows the view of Raban Shimon ben Gamliel (as Tosfos writes on 76b, DH Amar). Raban Shimon ben Gamliel (169a) rules that 'Osiyos Niknos b'Mesirah' -- a Shtar (and the property it represents) is acquired merely by being given over. Accordingly, Beis Din may not write a second Shtar even without Achrayus (a Shtar Ra'ayah) for a person who purchased land, because perhaps later he will give back the original Shtar to the seller (and receive his money in return), thereby transferring the land back to him, and he will come later with the second Shtar (the Shtar Ra'ayah) and take the land away from the seller unlawfully, since the Shtar Ra'ayah 'proves' that he bought the land.
</p><p>
Why, though, did Abaye not simply tell the landowners that the Halachah is like Raban Shimon ben Gamliel who rules that <i>no</i> second Shtar may be written, with or without Achrayus? Why did he tell them the ruling of Rav Safra (who follows the view of the Rabanan who maintain that Beis Din <i>may</i> write a second Shtar without Achrayus)? It seems that Abaye wanted to show them that even the Rabanan maintain that Beis Din may not write a second Shtar (with Achrayus). Had the landowners then demanded a second Shtar without Achrayus, Abaye would have told them that he rules like Raban Shimon ben Gamliel who states that even a Shtar without Achrayus may not be written.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>REPLACING A LOST DOCUMENT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Shimon ben Gamliel says, also regarding a document
          of sale, we do not write another (perhaps he returned the
          document, which negates the sale).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Similarly, R. Shimon ben Gamliel says, if Yehudah
          received a gift and returned the document, the gift
          reverts to the giver;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Chachamim say, he keeps the gift.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa said that we write another
          document of sale without Acharayus. What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Safra):</font></b> We do not write two documents for
          one field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are concerned lest the field be collected by a
               creditor (Levi) of the seller (Reuven), and the
               buyer (Shimon) will take land from someone who
               bought from Reuven after Shimon (and give to him one
               document);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A long time later, Shimon will scheme with Levi
               and tell him to claim his loan again, and Shimon
               will take land from someone else who bought from
               Reuven (and give to him the other document).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> When Shimon takes land the first time,
               we tear up Levi's document, so he cannot take land a
               second time!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps we do not tear up Levi's
                    document.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> Rav Nachman taught that a Tirfa
                    (a document authorizing a creditor to
                    investigate which land was the borrower's, even
                    if it was sold) is invalid unless it says 'the
                    lender's document was torn up';
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  An Adrachta (the second document, which
                    authorizes him to take the land from a buyer)
                    is invalid unless it says 'the Tirfa was torn
                    up'.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  A Shuma (a document in which Beis Din
                    writes the value of the land he takes) is
                    invalid unless it says 'the Adrachta was torn
                    up'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Indeed, we are not concerned lest
               Shimon's land be taken by a creditor, rather, lest
               Levi bring witnesses that the land used to belong to
               Levi's fathers, and Reuven stole it (and Shimon will
               collect twice, like explained above).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> Why must Shimon wait
          before taking the second land? He could take the fields
          one after the other!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> If he did so, each buyer would hear that he
          also took from another, and they would discover his
          scheme.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Beraisa say that we write
          another document of sale, but without Acharayus? (If
          Shimon really lost it, why should he lose?) We can write
          with Acharayus, and give Reuven (the seller) a document
          saying that Shimon can collect Acharayus only with a
          document with the date of the replacement document (but
          not with the original document)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rabanan):</font></b> This teaches that we do not force one
          to accept a Shover (receipt, or any document that negates
          a different document) to enable another (who lost his
          document) to receive what he deserves. (We are concerned
          lest the Shover be lost or eaten by mice.)
<br>
<br>

sjt:
<font><b>1) WRITING A SECOND SHTAR FOR THE ORIGINAL TRANSACTION</b></font><b>
<br>QUESTION:</b> The Gemara discusses the dispute between Raban Shimon ben Gamliel and the Rabanan, who disagree about whether Beis Din may write a new Shtar for a person who claims that he lost his original Shtar. The Rabanan maintain that even if the lender brings witnesses who attest that the original Shtar existed and that they signed on it after the loan took place, Beis Din may not write another Shtar for the lender. One reason for the Rabanan's ruling is that Beis Din must suspect that the lender will find the first Shtar and use the second Shtar to collect his debt a second time.
</p><p>
However, the Rabanan do not rule this way in the case of a sale with a Shtar Mechirah: if witnesses testify that a person bought a field, Beis Din may write a second Shtar for him (without Achrayus). Raban Shimon ben Gamliel maintains that even in the case of a sale, Beis Din may not write a second Shtar. What is the reasoning behind this argument?
</p><p>
<b>ANSWER:</b> The <b>RASHBAM</b> (DH Aval) explains that because the field belongs to the purchaser, and he is worried that someone will try to take it away from him if he cannot produce a Shtar in Beis Din, Beis Din may write for him a 'defensive' Shtar. Such a Shtar enables him to prove that the field belongs to him, but he cannot use it in case the field is appropriated by someone to whom the seller owed money. Raban Shimon ben Gamliel maintains that if a person gives back a Shtar which records a transaction (a gift or a sale), he effectively reverses the transaction (it is considered as though he has sold the object back to the seller, or he has given the gift back to the benefactor). Raban Shimon ben Gamliel rules this way because he maintains that 'Osiyos Niknos b'Mesirah' -- a Shtar (and the property it represents) is acquired merely by being given over (see 169b). The mere giving of the Shtar effects the transaction, without having to do anything more. Beis Din therefore has reason to suspect that the buyer (or recipient) of the sale (or gift) gave it back to the original owner and no longer owns the field. It follows that Beis Din should not write a second Shtar for him.
</p><p>
The <b>RITVA</b> explains the argument in more detail. He explains that Raban Shimon ben Gamliel maintains that a person does not need to bring witnesses who saw the transaction (in this case, the giving of the Shtar) between the two parties; rather, he needs only to present a Shtar that says that this field is his. Accordingly, the writing of a second Shtar poses a risk, as the buyer might have sold the field back to the original seller by giving him back the original Shtar. If the original seller says that he bought the field back, the buyer may claim that there is no reason why he (the original buyer) should still have a Shtar in his possession. Furthermore, the only thing that the original seller has is the original Shtar which he gave to the buyer. The buyer may claim that the only reason why the Shtar is in the seller's possession is because he planned to sell the field to the buyer again, and the Halachah is that one may write a Shtar Mechirah even in the absence of the buyer. Since this is a winning claim, Raban Shimon ben Gamliel rules that Beis Din may not write another Shtar for the buyer. The Rabanan, in contrast, maintain that the content of a Shtar which is given back must be authenticated by witnesses. Since this is the case, the buyer would not have effected any transaction by merely giving the Shtar back to the original seller. The original seller must have witnesses who attest to the second transaction, and therefore he will not be affected by the new Shtar that Beis Din draws up for the alleged 'owner' of the property.
</p><p>
The Ritva clarifies that according to Rebbi Shimon ben Gamliel, a problem exists only when the original buyer obtains a second Shtar. If he gives the Shtar back to the original seller (reversing the transaction), there is no reason to suspect that he will ask the witnesses of the original sale to testify that he is the true owner of the property. Since the seller is the only one with the Shtar, this claim is implausible. However, if he also has a Shtar, then Beis Din will believe the original buyer. This is why Raban Shimon ben Gamliel does not allow a copy of the Shtar to be given over in this case through Beis Din. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'> REPLACING A LOST LOAN DOCUMENT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 168b (Beraisa):</font></b> If Shimon claims that he lost his
               loan document, even though witnesses say that they
               wrote, signed and gave to him the document, we do
               not write another document for him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We do write another document of sale, but without
               Acharayus (liability to compensate the buyer if the
               land is legally taken from him).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 169a - Question:</font></b> We should write a new sale document
               with Acharayus, and give Reuven (the seller) a
               document saying that Shimon can collect Acharayus
               only with a document with the date of the new
               document!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Inference (Rabanan):</font></b> We do not force one to accept a
               Shover (receipt, or any document that negates a
               different document) to enable another (who lost his
               document) to receive what he deserves.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection (Rav Papa or Rav Ashi):</font></b> Normally we force
               one to accept a Shover. Here we do not, lest a
               creditor take Shimon's land, and Shimon will collect
               (with the original document) from later buyers, who
               have no Shover.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> If so, for the same reason we should not
               write a Shover for one who lost a loan document!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> When a creditor comes to collect from
               buyers, since he is owed money, they suspect that
               the borrower paid, so they will not give up their
               land before asking the borrower. Here, Shimon's land
               was taken. He wants back land, so buyers do not
               think that he accepted money from Reuven in its
               stead.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kesuvos 16b (Beraisa):</font></b> If a woman lost her Kesuvah,
               and witnesses say that her Nisu'in was like the
               custom for virgins, she collects 200.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> We should be concerned lest she bring
               witnesses and collect in Beis Din, and show her
               Kesuvah and collect again in another Beis Din!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (R. Avahu):</font></b> This shows that we write a
               receipt.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> Perhaps later she will collect again with
               the Kesuvah!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer #1:</font></b> 'Lost' in the Beraisa means that it was
               burned.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> We should be concerned lest she bring
               witnesses and collect in Beis Din, and bring
               witnesses and collect again in another Beis Din!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> Certainly, where there is no alternative, we
               write a receipt.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 23:11):</font></b> Regarding loan
               documents, even if the witnesses are around, and
               they acquired from him, and he said 'the document
               you wrote for me was lost or burned' we do not write
               another for him. Perhaps the loan was paid or
               pardoned, even if it was not due yet. He does not
               collect with these witnesses unless the borrower
               says 'I never borrowed', for then he is established
               to be a denier.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> Since it is within the time
                    of the loan, he can collect and write a
                    receipt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Teshuvah 94:5):</font></b> The Beraisa says that if one
               <i>says</i> that he lost his document, we do not write
               another for him. The Rashbam derived that if
               <i>witnesses testify</i> that the first was lost, we
               write another, without concern lest he find the lost
               document. This is difficult. A woman who lost her
               Kesuvah can collect it through witnesses who testify
               that she married like a virgin. We asked that
               perhaps she lies or will find it, and answered that
               she collects only if witnesses say that her Kesuvah
               was lost, i.e. burned (Kesuvos 16b). We can
               similarly answer the Rashbam's Diyuk. When he says
               that it was lost, i.e. burned, we do not write
               another, but we write if witnesses say so. However,
               we are concerned lest one find a document that he
               himself lost, for he knows where it was lost. We are
               not concerned if witnesses say that someone else
               lost it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Shach CM 41:11):</font></b> The Sugya in Kesuvos
                    is like the opinion that we do not write a
                    receipt. We hold that we write a receipt. The
                    Rashbam explains this opinion. The Sugya in
                    Kesuvos connotes that according to the opinion
                    that we write a receipt, we are not concerned
                    about (the lender finding) a lost document. The
                    Beis Yosef says that even though we write a
                    receipt, we are concerned lest he find his
                    document, and the borrower will not demand a
                    receipt, for he gets back his document. This is
                    wrong. In Kesuvos R. Avahu inferred that we
                    write a receipt, i.e. and if the husband will
                    show the Kesuvah, she does not collect again.
                    Also here, the borrower can show the document,
                    and the lender will not collect again. (He
                    knows that a copy was written, so he will hold
                    the document like a receipt.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> The Rosh (Bava Metzia 1:9)
                    rules that we write a document for a borrower
                    in the absence of the lender. If so, if a
                    borrower holds a loan document, this does not
                    proves that he paid!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (ibid.):</font></b> The Rambam and Sefer ha'Terumos
                    connote like the Rashbam. Gidulei Terumah asked
                    that there is concern lest it was paid. Even
                    the Ra'avad permits only before the loan was
                    due! This is not difficult. We discuss when
                    witnesses testify that it was lost b'Ones, e.g.
                    Nochrim captured the city. The Rashbam is
                    stringent when he claims that he lost it, but
                    when witnesses say so, we write another, and
                    the borrower takes a Shover when he pays.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Dagul me'Rvavah:</font></b> We need witnesses, for perhaps
                    the loan was already paid. If the borrower
                    admits that he did not pay, this suffices.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Dagul me'Rvavah:</font></b> We need witnesses, for perhaps
                    the loan was already paid. If the borrower
                    admits that he did not pay, this suffices.
vi.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Gra (41:19):</font></b> It seems that the Rashbam
                    retracted (168b DH bi'Shtarei - we are
                    concerned lest the lender find the document
                    afterwards). The Maharsha says that the Rashbam
                    is not concerned for this when witnesses say
                    that he lost it.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 41:3):</font></b> If Shimon lost his
               document and asks Beis Din to write a new document
               for him, we do not, even though the witnesses of the
               first document say that they wrote and gave it to
               him. Beis Din does not make a copy of any document
               unless they see a need, e.g. a loan document was
               erased. If they wrote a Tofes (a loan form, and
               added the details of the loan), Beis Din does not
               collect for him until he gives the document itself,
               unless they wrote why they made a copy, e.g. the
               first document was erased.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav):</font></b> The Rashba says that
                    whenever there is a need, we write a Tofes. It
                    says at the top why the Tofes was written, and
                    at the bottom that it is a mere Tofes for a
                    proof, but not to collect. In another Teshuvah
                    he wrote that we do not copy a document (in a
                    way that can be used to collect) even for
                    orphans who are away, lest it be used to
                    collect a second time.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (19):</font></b> We are concerned lest he collect
                    again with the copy. If the copy would say that
                    it is not for collection, it would not hep at
                    all!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> It could refute a borrower who says 'I
                    never borrowed.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (18):</font></b> We are not concerned lest Beis Din
                    err, but we are concerned lest they forget.
                    When Beis Din writes a Tirfa (authorizing a
                    creditor to check which land was the
                    borrower's), they must tear up the loan
                    document. A Tirfa is valid only if it says 'the
                    loan document was torn' (169a).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> We do not write unless
               witnesses know that the document was lost. Even if
               they know that it was lost, we do not write, lest he
               find it, unless they testify that it was burned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (11):</font></b> It seems that even the Rosh and
                    Beis Yosef agree that we may write a new
                    document if we inform the borrower. This
                    explains why the Rosh (68:31) says that when we
                    know that it was lost, we write another. (Also,
                    there he discusses when the document was
                    totally lost.) The Poskim do not argue. The
                    Rosh and Beis Yosef discuss when we do not
                    inform the borrower; the Rashbam and Rambam
                    discuss when we inform him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tumim (2):</font></b> Chachamim enacted to accept
                    testimony about a fading or lost document not
                    in front of the borrower, lest it get totally
                    erased or the witnesses leave before the
                    borrower returns. The Shach must agree
                    regarding a lost document. If not, we would not
                    need to inform the borrower! he would always
                    know! st it get (is away
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (12):</font></b> We should be concerned lest he burn
                    the document in front of many pairs of
                    witnesses, and (get multiple copies, and)
                    collect more than once! Since we write a
                    Shover, we are not concerned for this. We must
                    say that the new document is from the current
                    date, lest the lender and borrower scheme, and
                    the borrower will hide his Shover and allow the
                    lender to collect from buyers more than once.
                    This is why the Shulchan Aruch (Sa'if 1)
                    requires tearing the first document, for it is
                    from the initial date. The Ra'avad says that
                    Beis Din writes another document only when the
                    witnesses say that no other witnesses saw the
                    document burn. The Rosh (Bava Basra 3:38), Tur
                    and Shulchan Aruch (116) say similarly (in
                    another case). Perhaps also here they discuss
                    when there were no other witnesses.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection (Rav Papa or Rav Ashi):</font></b> Really, normally we
          force one to accept a Shover;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here we do not, lest a creditor take Shimon's
               land, and Shimon will collect (with the original
               document) from later buyers, who do not have the
               Shover.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> The later buyers will go to Reuven (to be
          compensated), he will show to them the Shover, and they
          will take back their land!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> In the meantime, Shimon may consume the
          Peros, and it may be difficult to recover them.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Perhaps the buyers did not have Acharayus,
          and they will not go to Reuven.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> If so, for the same reason we should not
          write a Shover for one who lost a loan document!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> When a creditor comes to collect from buyers,
          since he is owed money, they suspect that the borrower
          paid, so they will not give up their land before asking
          the borrower;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, Shimon's land was taken. He wants back
               land, so buyers do not think that he would accept
               money from Reuven in its stead. (They know that
               Reuven sold all his land.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ACHARAYUS ON A SALE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We write another document of sale, without
          Acharayus.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What do we write?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> 'One may not collect with this
          document from sold or Bnei Chorin. It is only to prove
          that Shimon bought it.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Inference (Rafram):</font></b> This teaches that Acharayus Ta'us
          Sofer (if a document does not mention Acharayus, there is
          Acharayus, we assume that the Sofer neglected to write
          it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If not for this text, he would have Acharayus,
               even though it was not mentioned!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 - Rav Ashi):</font></b> Really, Acharayus
          Lav Ta'us Sofer (if a document does not mention
          Acharayus, there is no Acharayus). The document does not
          mention Acharayus at all.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Leah gave money to Levi to buy land for her. He bought
          for her without Acharayus.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> She sent you to help her, and not to
               harm her! You must buy the land without Acharayus,
               and sell it to her with Acharayus (i.e. if it is
               taken, you must compensate her).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES MESIRAH ACQUIRE OSIYOS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon ben Gamliel):</font></b> If Yehudah received
          a gift from Moshe and returned the document, the gift
          reverts to the giver;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, he keeps the gift.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Shimon's reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Asi):</font></b> It is as if Moshe said 'this gift
          is yours as long as you have the document.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rabah):</font></b> If so, also if the document were lost
          or stolen, the gift would go back!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> They argue about whether or not
          Osiyos (the contents of a document) are acquired through
          Mesirah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says that Osiyos are
               acquired through Mesirah (therefore, returning the
               document is like returning the gift);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that Osiyos are not acquired
               through Mesirah (until he <i>also</i> writes another
               document).
<br>

<p>

sjt:
</p><p>
<font><b>2) A MESSENGER WHO BUYS A FIELD WITHOUT 'ACHRAYUS'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which a woman sent a messenger to purchase a field for her. The Halachah is that when a person borrows money with a Shtar and fails to repay the loan, the lender may seize any fields that the borrower owned at the time of the loan, even if they were subsequently sold to others. Accordingly, one who purchases a field always attempts to secure 'Achrayus,' responsibility from the seller of the field who ensures that in the event that the field is seized by his creditor, the seller will compensate the buyer. In the Gemara's case, the messenger purchased the field with the explicit condition that there is no Achrayus. The woman was upset when she heard of the messenger's mistake, and she brought her predicament to Rav Nachman. Rav Nachman said that a messenger is supposed to benefit the person who sends him, and in this case the messenger did the opposite. He therefore ruled, 'Go buy it from him without Achrayus, and then sell it to her with Achrayus.' What did Rav Nachman mean?
</p><p>
(a) The <b>NIMUKEI YOSEF</b> explains that Rav Nachman ruled that the messenger should purchase the land <i>for himself</i> from the original seller without Achrayus, and then sell the field to the woman with Achrayus. The Nimukei Yosef apparently means that since the messenger did not act in the best interest of the woman, it is considered as though he acquired the land for himself. Since the messenger did not even state that he was a messenger, the seller has the right to refuse to return the money. The messenger therefore should write in the Shtar that he was the original purchaser, and he should then sell the land to the woman with Achrayus. This is also the opinion of the <b>RAN</b> in Kidushin (42b).
</p><p>
According to the Nimukei Yosef's understanding of Rav Nachman, the woman never bought the field because the messenger did not act in her best interest. According to this opinion, is the messenger entitled to say that he does not want to sell the field to the woman?
</p><p>
1. The <b>RASHBA</b> says that the messenger may elect to keep the field for himself and return the original sum of money to the woman.
</p><p>
2. The <b>MAHARSHAL</b> is in doubt about whether the messenger has the right to keep the field and give back the money to the woman.
</p><p>
(b) The <b>ROSH</b> understands that the messenger in fact <i>did</i> tell the seller that he was buying the field for the woman. Since it was clear that he was buying the field as the representative of the woman and he made a serious error, the sale is invalid. This is why Rav Nachman said that the messenger must repurchase the field -- the field was not yet bought from the seller. Assuming that the seller did not want to sell the field with Achrayus and that he did not want to give back the money when he heard that the transaction was invalid, Rav Nachman told the messenger that he should be the one to purchase the field from the seller without Achrayus, and he then should sell it to the woman with Achrayus. However, if the messenger wants, he may bring the seller to court and get the money back and give it to the woman, and he does not have to purchase the field without Achrayus. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE ARGUMENT OF REBBI AND R. SHIMON BEN GAMLIEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - Rebbi):</font></b> If Reuven says that he has a
          document and a Chazakah for his land, he must produce the
          document;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Gamliel says, he brings witnesses of
          Chazakah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Dimi):</font></b> They argue about whether or not
          Osiyos are acquired through Mesirah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says that Osiyos are not
               acquired through Mesirah (until he also makes
               Chazakah in the land);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says that Osiyos are acquired through
               Mesirah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> This argues with Rabah (he says that
          R. Shimon ben Gamliel holds that Osiyos are acquired
          through Mesirah)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Dimi:</font></b> Yes, I argue!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Abaye:</font></b> The only way to explain the Mishnah is
               like Rabah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> The case is, one of the witnesses
          was found to be a relative or invalid witness. They argue
          as R. Meir and R. Elazar argue;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi holds like R. Elazar, who says that Edei
               Mesirah Karsei (a document is empowered by the
               witnesses who saw it given. Therefore, as long as
               valid witnesses saw the document given, it is
               valid);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel holds like R. Meir, who
               says that Edei Chasimah Karsei (a document is
               empowered by the witnesses who signed it. Therefore,
               the document is invalid).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> R. Aba taught that R. Elazar admits that a
          document signed by invalid witnesses is invalid!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (R. Avina):</font></b> All agree that if the document
          says 'we (Beis Din) investigated the testimony, and we
          found that it is invalid', the document is invalid, as R.
          Aba taught;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a document without signatures.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi holds like R. Elazar, that Edei Mesirah
               Karsei (therefore, it is valid without signatures);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Gamliel holds like R. Meir, who
               says that Edei Chasimah Karsei (therefore, it is
               invalid).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #4 (R. Avina):</font></b> They argue about whether or not
          the lender must validate a document if the borrower
          admits that he authorized it (but claims that he paid
          it):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi says, he need not validate it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, he must validate it.
               (If not, the borrower is believed to say that he
               paid, Migo (since) he could claim that it was
               forged.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> They hold just the contrary!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> Reuven (the lender) and Shimon
               (the borrower) were fighting over the document:
               Reuven says 'I dropped it, and you found it.' Shimon
               says 'no, I paid you.' Reuven must validate it to
               collect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, he collects half.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Does Rebbi argue with the following
               Mishnah?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Levi and Yehudah were holding a
                    garment, and each claims 'I found it', each
                    swears that he does not own less than half, and
                    they divide it. (Here also, perhaps Shimon
                    dropped it. Why can Reuven collect the full
                    amount if he validates it?)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> If the document was validated, all
               agree that he collects half;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They argue in a case that when it was not
                    validated. Rebbi says, even though Shimon
                    admits that it he authorized it, Reuven must
                    validate it (to collect half);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Shimon ben Gamliel says, he need not
                    validate it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We must switch the opinions.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We need not switch the opinions. They argue
          about whether one must justify all his claims:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi says that he must. He must validate the
               document <i>and</i> bring witnesses of Chazakah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says that one need not
               justify all his claims. It suffices to bring
               witnesses of Chazakah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Rav Yitzchak bar Yosef claimed that R. Aba owed him
          money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Aba:</font></b> I paid you in front of Ploni and Almoni.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yitzchak Nafcha (who was judging the case):
               Let Ploni and Almoni come testify!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Aba:</font></b> Am I not believed without them? If one
               borrowed money in front of witnesses (and no
               document was written), he need not pay back in front
               of witnesses!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yitzchak Nafcha:</font></b> You yourself taught in Rav's
               name that if one says 'I paid you in front of Ploni
               and Almoni', they must testify for him!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Aba:</font></b> Rav said that the Halachah follows R.
               Shimon ben Gamliel. Even Rebbi said to validate the
               document only in order to clarify his claim (but if
               he cannot, he does not lose).
<br>
<br>

sjt:
<font><b>1) REBBI'S OPINION THAT ONE MUST BE 'MEVARER' HIS CLAIM</b></font><b>
<br>OPINIONS:</b> The Gemara records a dispute between Rebbi and Raban Shimon ben Gamliel with regard to whether or not a person who claims that he paid back a loan in front of specific witnesses must bring the witnesses to Beis Din to testify and support his claim. Rebbi Shimon ben Gamliel rules that he does not have to bring the witnesses to Beis Din, since his claim that he paid back suffices. Rebbi rules that he must summon the witnesses to Beis Din to support his claim. The Gemara concludes that Rebbi himself agrees that he normally does not need to bring the witnesses to Beis Din to prove that he paid back a loan, but in this case he must bring witnesses to be 'Mevarer' ('clarify'). What exactly does this mean?
</p><p>
(a) The <b>RASHBAM</b> (DH Amar Lei) explains that according to Rebbi, since the borrower explicitly mentioned the names of those who saw him pay back the loan, he must show that his claim is true. If he cannot bring those witnesses, it is considered as though he did not pay back the loan.
</p><p>
(b) <b>TOSFOS</b> (DH Ela) quotes <b>RABEINU TAM</b> who questions the Rashbam's explanation. If, in a normal case, merely saying that he paid back suffices to exempt the borrower and he does not have to bring witnesses to Beis Din, then why is he penalized when he mentions the names of the witnesses who saw him pay back? Why does he lose the case if he fails to bring those witnesses to Beis Din?
</p><p>
Rabeinu Tam explains instead that when Rebbi says that the borrower must be 'Mevarer,' he means that the borrower should clarify his claim <i>if he can</i>. Accordingly, if he brings the witnesses to Beis Din and they say that they never say him repay the loan, then he still owes the money. However, if he cannot find the witnesses, or if they say that they do not remember, he does <i>not</i> owe the money. Later, Rabeinu Tam suggests that it is even possible that if the witnesses deny that they saw him pay back, he may say that they simply do not remember, and thus their testimony does not work against him.
</p><p>
Rabeinu Tam cites support for his explanation from the Gemara in Shevuos (41b). The Gemara there discusses a case in which a person claimed from his friend the 100 Zuz which he had lent to him. The borrower said, 'Did I not pay you back in front of these two people?' The two people were summoned to Beis Din, where they said that they had no recollection of witnessing such a repayment. Rava ruled that this does not mean that they never saw the payment, but that they merely did not pay attention to remember the event. According to the Rashbam, why does Rava say that the borrower does not have to pay the lender?
</p><p>
The <b>RITVA</b> records three answers to Rabeinu Tam's proof against the Rashbam's explanation.
</p><p>
1. The Gemara in Shevuos refers to a borrower who was not sure about the identity of the witnesses who saw him pay back the loan. This is evident from the wording that he used, 'Did I not pay you back in front of these two people?' Since he was not certain himself, Beis Din does not hold it against him if the witnesses he mentioned have no recollection of the event. In contrast, in the case of the Gemara here the borrower is certain, and thus he must prove that what he claims indeed is what happened.
</p><p>
The Ritva rejects this answer because the expression, 'Did I not pay you back...,' is also used by the Gemara as an expression of a person who is indignant that his friend does not remember something.
</p><p>
2. The <b>BA'AL HA'ME'OR</b> answers that the Gemara in Shevuos refers to a person who did not specifically ask the witnesses to witness the event, but he merely assumed that they did because they were present. If they say that they did not notice what happened, the borrower cannot be held accountable. In contrast, the Gemara here refers to a person who says that he specifically designated two people to witness the event.
</p><p>
The Ritva has a slight difficultly with this answer, because the Gemara here and in Shevuos make no mention of these specific details of the cases.
</p><p>
3. The <b>RA'AVAD</b> answers that when Rava in Shevuos says that the witnesses merely did not pay attention, he does not mean that the borrower is exempt from paying back. Rather, his intent is to counter the severe statement of Rav Sheshes, who says that the borrower is considered a liar from now on. Rava says that he is not considered a liar, but he agrees that the borrower must pay. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MUST A LENDER VALIDATE A DOCUMENT THAT THE BORROWER ADMITS TO?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 154a:</font></b> R. Meir and Chachamim argue about whether a
               lender must validate a document (authenticate the
               signatures) if the borrower admits that he
               authorized it (but claims that he paid it). R. Meir
               says that he need not validate it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that he must validate it. (If not, the
               borrower is believed to say that he paid, Migo
               (since) he could claim that it was forged.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 169b (Beraisa #1 - Rebbi):</font></b> If Reuven says that he
               has a document and a Chazakah for his land, he uses
               the document to prove his claim;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon ben Gamliel says, he brings witnesses of
               Chazakah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (R. Avina):</font></b> They argue about whether or not the
               lender must validate a document if the borrower
               admits that he authorized it. Rebbi holds that he
               need not validate it. R. Shimon ben Gamliel holds
               that he must validate it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Beraisa #2 - Rebbi):</font></b> If a lender and
               borrower are holding a loan document, and each
               claims 'I dropped it', we validate it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon ben Gamliel says, they divide it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rava):</font></b> The document was not validated. The
                    borrower admits that he wrote it. Rebbi
                    requires the lender to validate it. An
                    invalidated document is worthless. If we honor
                    it only due to the borrower, he says that it
                    was paid! R. Shimon ben Gamliel holds that the
                    lender need not validate it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> We must switch the opinions.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2:</font></b> We need not switch the opinions. In
               Beraisa #1, they argue about whether one must
               justify all his claims. Rebbi holds that he must
               validate the document <i>and</i> bring witnesses of
               Chazakah. R. Shimon ben Gamliel says that it
               suffices to bring witnesses of Chazakah.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Kesuvos 19a (Rav Huna):</font></b> If David agrees that a
               document (that says that he owes Reuven) was written
               properly, Reuven need not validate it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Nachman (to Rav Huna):</font></b> You deceive people! If
               you hold like R. Meir, say that the Halachah follows
               R. Meir! (Saying the law in your own name implies
               that all agree to it!)
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rav Nachman:</font></b> In such a case, I tell Reuven to
               validate it first. (If not, we believe David due to
               the Migo.)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If he says that the document is
               Amanah (the borrower trusted the prospective lender
               and gave to him the document before the loan was
               given), he is not believed.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Rava):</font></b> He means that the borrower claims that it is
               Amanah. He is not believed for the reason of Rav
               Huna.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Metzia 3b):</font></b> The Halachah follows Rebbi,
               who says that the lender must validate it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (Bava Basra 72b DH Omar):</font></b> A
                    borrower is believed to say that a document was
                    conditional only before the lender validated
                    it. He is believed Migo he could say that he
                    never sold or borrowed. Even though the claim
                    is about money and the Migo is about the sale,
                    and we hold that one is not believed about a
                    matter due to a Migo he could claim about
                    another matter, since he claims the money for
                    the field, this is like one matter. There is a
                    Chazakah that witnesses sign only if the
                    parties are adults. This applies to a validated
                    document. If it is not validated, he is
                    believed to say that he was a minor, Migo he
                    could say that he does not recognize the
                    document, and it is a forgery. Normally, it is
                    a Safek whether we rely on Migo against a
                    Chazakah. Here we surely say the Migo. This is
                    because not all Chazakos are equal, or because
                    we leave money in its Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 14:5):</font></b> If Reuven brought
               against David a loan document that he cannot
               validate, and David says 'yes, I wrote this
               document. However, I paid it' or 'it was Amanah' or
               'I wrote it to borrow, but I still did not borrow',
               or a similar claim, since he could have denied that
               anything happened, and it was validated through his
               admission, he is believed to swear Heses and exempt
               himself. If afterwards the lender validated it in
               Beis Din, it is like any document.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 82:1):</font></b> If Reuven brought against
               David a loan document, but he cannot find witnesses
               to validate it, and David admits that he wrote it,
               but says that he paid it, he is believed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz:</font></b> The borrower is believed only if he says
                    that he paid Toch Kedei Dibur within admitting
                    that he wrote it. If not, this is a retroactive
                    Migo, and he is not believed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Even if there is Ne'emanus in
               the document (it says that the lender is believed to
               say that it was not paid), it does not help.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Malveh):</font></b> Sefer ha'Terumos says
                    that presumably, even for a document with
                    Ne'emanus, the borrower is believed to say that
                    he paid. Since the lender did not validate it,
                    the Ne'emanus does not help. An unvalidated
                    document is (worthless,) like a shard. If you
                    will rely on the borrower (who says that it is
                    valid), he says that he paid! Ba'al ha'Itur
                    says that the borrower is not believed in such
                    a case due to a Migo; I disagree. The Tur holds
                    like Sefer ha'Terumos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (2):</font></b> Even when there is Ne'emanus, there is
                    a Migo to say that the entire document is a
                    forgery.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies to any claim
               that would invalidate the document, e.g. 'it was
               Amanah' or 'I wrote it to borrow, but I still did
               not borrow', or 'it was conditional on a Tanai and
               the Tanai was not fulfilled.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav v'Hu):</font></b> Kesuvos
                    19a discusses Amanah (and says that the same
                    applies). The Rambam adds one who says 'I wrote
                    it to borrow, but I still did not borrow', i.e.
                    and it fell from me and you found it. The Tur
                    adds one who says that it was conditional, and
                    the Tanai was not fulfilled.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (1):</font></b> Gidulei Terumah says that Tosfos
                    (19b DH Omar Rav Nachman) and 19a (DH Eima)
                    holds that a claim of Amanah is unlike a claim
                    that he paid. Really, it is clear from the
                    Gemara that Amanah is like a claim that he
                    paid. No one disagrees.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Ketzos ha'Choshen (2):</font></b> Hagahos Maimoniyos
                    (Teshuvos Sefer Mishpatim 9) disagrees. He
                    holds that just like witnesses are not believed
                    to say that it was Amanah, for witnesses do not
                    sign on Amanah, similarly the borrower is not
                    believed to say this.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (2):</font></b> It seems that he is believed even if
                    he says that the witnesses knew that it was
                    Amanah or that he wrote it to borrow, but he
                    still did not borrow. Even though he says that
                    the witnesses are Resha'im, he is believed due
                    to the Migo. A proof is from the Nimukei Yosef
                    and Rema, who say that he is believed even if
                    he says that he was a minor, even though this
                    means that the witnesses are Resha'im, for they
                    are obligated to check that the parties are
                    adults. The Rashba says so, and Ba'al ha'Itur
                    and Sefer ha'Terumos say so about a predated
                    document. Witnesses are not believed to say
                    that they signed on Amanah or that the litigant
                    was a minor, for this would make them Resha'im;
                    one cannot make himself a Rasha, and we split
                    their words. We believe that it is their
                    signatures, but not that it was Amanah. Here
                    the borrower says that it was Amanah and we
                    cannot validate the document, and the witnesses
                    are not here, so he is believed due to the
                    Migo. Therefore, if witnesses will come later
                    and say that they signed but it was Amanah, the
                    document is validated.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (2):</font></b> All the more so he is believed to say
                    that it was conditional, for even the witnesses
                    are believed to say that there was a Tanai. The
                    borrower is believed about this even if the
                    document was validated (Sa'if 12).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Note:</font></b> There we say that he can force the lender
                    to swear, and if the lender admits that there
                    was a Tanai (to exempt the borrower), he must
                    prove that it was not fulfilled.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If he says 'I was a minor at the time it was
               written', he is believed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (3):</font></b> Even though witnesses are not believed
                    about this, (the borrower is, for) this is no
                    worse than saying 'it was Amanah.'
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A DOCUMENT THAT WAS VALIDATED ONLY LATER </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yitzchak Nafcha:</font></b> Also I said only that they
               should testify in order to clarify your claim!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DO WE WRITE A NEW DOCUMENT AFTER PARTIAL PAYMENT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If Reuven paid part of his debt
          to Shimon, he exchanges (tears the document and writes a
          new document for the remainder);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi says, Shimon gives Reuven a receipt for what he
          paid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Yehudah:</font></b> If so, Reuven must guard his receipt, lest
          mice eat it (and Shimon will force him pay the entire
          debt)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yosi:</font></b> That is better than making Shimon lose his
          lien (from the time of the original document).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rav Huna citing Rav):</font></b> The Halachah does not
          follow R. Yehudah, nor R. Yosi;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, Beis Din tears the old document, and
               write a new document from the original date.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Had Rav heard the following Beraisa, he
          would have retracted!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> <i>Witnesses</i> tear the old document, and
               write a new document from the original date.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> Rav heard it, but he did not retract. (He is
          a Tana. He may argue with a Beraisa.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Din has authority to dispossess money as
               they see fit (to write a predated document);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The witnesses did what they were told (to write a
               document from the original date). They have no
               authority to do so again!
<br>

sjt:
</p><p>
<font><b>2) THE HALACHAH FOLLOWS RAV AND NOT THE TANA'IM OF THE MISHNAH</b></font><b>
<br>QUESTION:</b> The Mishnah discusses the proper course of action to take when a borrower repays part of the debt he owes. According to Rebbi Yehudah, the original Shtar should be torn up and the witnesses should sign a new Shtar with the new amount owed, dated from the day of the original loan. According to Rebbi Yosi, the lender keeps the original Shtar and he writes a receipt in which he states that he received a certain amount of money from the borrower towards the repayment of the loan.
</p><p>
In the Gemara, Rav states that the Halachah follows neither of the opinions in the Mishnah. He says that although Rebbi Yehudah's opinion generally would be the proper course of action, such a procedure may be done only by Beis Din and not by the borrower and lender themselves.
</p><p>
The <b>RASHBAM</b> (DH v'Chosvin) addresses the obvious question that Rav, who is an Amora, should not have the authority to argue with the Tana'im. He answers that Rav has the status of a Tana and therefore may argue with the Tana'im. The <b>SHULCHAN ARUCH</b> (CM 54:1) rules like Rav.
</p><p>
The <b>KOVETZ SHI'URIM</b> has difficulty with this ruling. <b>TOSFOS</b> in Kesuvos (8a, DH Rav) writes that it is evident that Rebbi Yochanan did <i>not</i> maintain that Rav had the status of a Tana, as Rebbi Yochanan often argued with Rav. Accordingly, a dilemma arises. There is a rule that when Rav and Rebbi Yochanan disagree, the Halachah follows the view of Rebbi Yochanan (see Beitzah 4a). If the Halachah follows Rebbi Yochanan, then Rav certainly should not have the status of a Tana, since Rebbi Yochanan himself maintained that Rav was not a Tana. Why, then, does the Halachah follow the view of Rav when he argues with Tana'im?
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> posed this question to <b>RABEINU CHAIM HA'LEVI SOLOVEITCHIK</b> who answered that it is inaccurate to say that an Amora cannot argue with a Tana. The general rule is that an Amora <i>presumably</i> would not argue with a Tana if he knew that the Tana said otherwise. This is because every Amora assumed that the Tana'im had a far greater understanding of the topic than he. This is the intent of the Gemara whenever it questions an Amora from the statement of a Tana. However, if an Amora recognizes that his opinion is in disagreement with a Tana and yet he chooses to argue with that Tana anyway, it is possible that the Halachah will follow that Amora. Therefore, Rabeinu Chaim explained, the fact that the Halachah follows the view of Rav does not depend on whether or not Rav had the status of a Tana.
</p><p>
The Kovetz Shi'urim finds support for this explanation in the words of the <b>IGERES D'RAV SHERIRA GA'ON</b>, who notes that there are times that an Amora decides that the text in the Mishnah is not correct and emends it. This shows that an Amora has the ability to argue with a Tanaic statement.
</p><p>
(However, the Kovetz Shi'urim notes that Rav Sherira seems to disagree with Tosfos' conclusion in Kesuvos that Rebbi Yochanan maintained that Rav was not a Tana. See the Kovetz Shi'urim here at length for another opinion with regard to when an Amora may argue with a Tana.) (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WRITING ADDITIONAL DOCUMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Sheluchim who fulfilled their mission can
          fulfill it again!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> (If one lost his document and told
               witnesses to write another, they can write 10
               documents for the same field (if he keeps losing
               them)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> This refers to a gift document.
          (There is no Achrayus. Rav forbids only documents that
          could harm others.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rabah):</font></b> It can even be a sale document, if it does not
          have Achrayus.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the full text of the Beraisa cited
          above (end of 170b)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Yehudah):</font></b> If Reuven owed Shimon
          1000 Zuz, and he paid half, witnesses tear the old
          document, and write a new document from the original
          date;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yosi says, Shimon keeps the old document, and we
          write a receipt for Reuven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There are two reasons we write a receipt. It
               encourages Reuven to pay quickly (he fears lest he
               lose the receipt, and need to pay the entire loan
               again), and it allows Shimon to collect (property
               sold) from the original date.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Also according to R. Yehudah, Shimon
               can collect from the original date!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> (In the Mishnah, R. Yehudah said 'he
               exchanges.' This <i>could</i> mean that the new document
               is from today's date.) R. Yosi says, if you say that
               the new document is from the original date, I argue
               with you for one reason;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If you say that the new document is from today's
                    date, I argue with you for two reasons.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MUST A BORROWER ACCEPT A RECEIPT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> If the date on a document
          corresponds to Yom Kipur or Shabbos, we assume that it
          was postdated. It is valid;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi says, it is invalid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yehudah:</font></b> A case occurred in Tzipori, and you
               ruled that such a document is valid!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yosi:</font></b> I allowed a document in which the date
               corresponded to Yom Kipur or Shabbos.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> That is what R. Yehudah referred to!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (R. Pedas):</font></b> All agree that if the date
               corresponded to Yom Kipur or Shabbos, it is valid
               (for this is as if it explicitly says 'this document
               is postdated');
<br>
<br>

sjt:
<font><b>1) REBBI YOSI'S REASON FOR THE WRITING OF A 'SHOVER'</b></font><b>
<br>OPINIONS:</b> The Beraisa records two opinions in the case of a borrower who pays part of a debt written in a Shtar Halva'ah. Rebbi Yehudah rules that the original loan document should be torn up, and the witnesses should sign a new Shtar with the new amount owed, and date it from the day that the original loan was given. Rebbi Yosi says that the original Shtar is kept by the lender, who writes a receipt for the partial repayment that the borrower paid.
</p><p>
Rebbi Yosi gives two reasons for his position. His first reason is that as long as the original Shtar is in existence, the borrower will be forced to pay back all of the money. His second reason is that the original Shtar enables the lender to collect the debt from Nechasim Meshubadim from the original date of the loan, and not from a new date. The Gemara asks that even Rebbi Yehudah says that the new Shtar should contain the old date, and thus how does Rebbi Yosi differ from Rebbi Yehudah? The Gemara concludes that Rebbi Yosi adds this reason only because he is unsure of whether Rebbi Yehudah agrees that the new Shtar should show the original date.
</p><p>
The Gemara seems to conclude that Rebbi Yosi's primary reasoning is that the original document will force the borrower to pay back the money. How will the original document force the borrower to pay back, any more than a new document?
</p><p>
(a) The <b>RASHBAM</b> (DH Kedei) explains that the borrower is afraid that he might lose the receipt, and the lender will claim (either mistakenly or maliciously) the entire amount of the original loan. This motivates the borrower to repay the entire amount as soon as possible so that he will get possession of the original Shtar.
</p><p>
(b) The <b>RAN</b> adds that if Beis Din encourages the practice of writing new Shtaros, the borrower might pay back most of the money and then neglect to pay back a small amount which he still owes. When the Shtar with the entire debt is left in the hands of the lender, the borrower makes sure to pay back all of the money, since he is afraid that the lender eventually will claim all of the money from him.
</p><p>
(c) The <b>NIMUKEI YOSEF</b> explains that if new Shtaros are written, the borrower will feel secure that he may continue to pay back the loan little by little. This practice hurts the lender, who needs his money back all at once (the same way he lent the borrower the money all at once).
</p><p>
(<b>RASHI</b> in Kesuvos (56a, DH Rebbi Yosi) also explains Rebbi Yosi's reasoning. However, he gives only the second reason mentioned by in the Gemara here, that Rebbi Yosi wants to ensure that the date is the original date so that the lender may collect from that date from Nechasim Meshubadim. <b>TOSFOS</b> there (DH Rebbi Yosi) asks the obvious question: Rashi seems to ignore the conclusion of the Gemara here in Bava Basra, that the real reason of Rebbi Yosi is to encourage the borrower to pay, and not because of the date of the Shtar. Why does Rashi ignore the conclusion of the Gemara here? See the <b>HAFLA'AH</b> to Kesuvos there, who explains that the reason of forcing the borrower to pay back is not as applicable in the case of a Kesuvah as it is in the case of a loan.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IN WHICH CASES DID CHACHAMIM DISQUALIFY PREDATED DOCUMENTS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A predated loan document is invalid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 157b - Question:</font></b> Granted, one may not use it to
               collect from (Meshubadim, i.e. land sold by the
               borrower after) the first date (what is written),
               but it should be valid to collect from the second
               date (the true date of the loan)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (Reish Lakish):</font></b> Indeed, Chachamim say that
               it may be used to collect from the second date. This
               Mishnah is R. Meir (who makes a fine that one loses
               what he is entitled to, to discourage people from
               trying to get what they are not entitled to (earlier
               Meshubadim).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (R. Yochanan):</font></b> Chachamim admit in this
               case. This is a decree, lest he come to collect from
               the written date.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> A case occurred, Reuven threatened Shimon 'if you do
               not sell your orchard to me, I will claim that it is
               mine'. (Reuven had a Chazakah, so he would have been
               believed.) Shimon was Makneh the orchard to his son
               (a minor), then Shimon sold it to Reuven. Clearly,
               the sale to Reuven is invalid.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Is the money Reuven paid like a loan with
               a document (the Achrayus entitles him to collect
               from Meshubadim)? Or, is it like a Milveh Al Peh (a
               loan without a document), which cannot be collected
               from Meshubadim?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> We learn this from R. Asi's law!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Asi:</font></b> If Levi admits that he authorized a
                    document, Yehudah can use it against him, Levi
                    cannot demand that he validate it. (Shimon
                    admits that Reuven paid for the orchard, like
                    the document says. It is invalid to acquire the
                    orchard, but it shows that Shimon owes him
                    money!)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection (Rava):</font></b> The case of the orchard is
               different, for there was no Heter to write the
               document!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (Ravina):</font></b> If so, why does R. Yochanan say
               that it is a <i>decree</i> not to collect from the latter
               date, lest he collect from the date written? He
               should say the document is invalid because there was
               no Heter to write it!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Mereimar):</font></b> A predated document had a Heter
               to be written, i.e. with the date of the loan. There
               was no Heter to write the document of the orchard at
               all!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bava Metzia 17a (R. Yochanan):</font></b> If a loan was paid,
               the document cannot be used for another loan (of the
               same amount between the same parties), for Nimchal
               Shibudo (the lien created against the borrower has
               been pardoned).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> If the second loan is on a later day, even
               without Nimchal Shibudo it is Pasul because the date
               precedes the loan!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah:</font></b> Predated loan documents are invalid.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Metzi'a 42b and 5:58):</font></b> R.
               Yochanan says that even Chachamim decree. This is
               the Halachah; it is like a Milveh Al Peh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 23:1):</font></b> A predated documents
               is invalid, for it allows the lender to fraudulently
               collect land from buyers. Chachamim made a fine that
               it may be used to collect only from Benei Chorin
               (property of the borrower). This is a decree lest
               one collect land sold after the earlier date.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (1):</font></b> If the document says
                    that it is predated, it is Kosher.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why is the document valid for Benei
               Chorin? The witnesses are Pesulim, for they
               intentionally signed Sheker!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Rosh, ibid.):</font></b> The case is, there are
               other witnesses who say that the witnesses who
               signed were coerced and signed to save their lives.
               Alternatively, they erred about the year of the king
               or the day of the month (they thought that that last
               Chodesh was 30 days), and the document does not
               mention the day of the week, only the day of the
               month.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Nimukei Yosef DH Pesulim and Ran Rosh
               Hashanah 2a DH Shitrrei):</font></b> A Mishnah teaches that we
               may write (and sign) a document with the proper date
               and gave it to the borrower. The witnesses did so;
               the loan was given later. Really, one may do so only
               if the borrower puts a lien on his property
               immediately. However, witnesses who do not know this
               are not Resha'im.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #3 (Pirush ha'Mishnayos Shevi'is 10:5):</font></b> The
               case is, the borrower paid up the loan and left the
               document with the lender. The lender later lent
               again, relying on the same document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Lechem Mishneh):</font></b> Once a loan is paid,
                    the document is totally Pasul. This is even if
                    the date is correct, e.g. the second loan was
                    the same day!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense (Shach CM 43:15 DH v'Ra'isi):</font></b> The
                    Rambam teaches that it is called predated even
                    in such a case (when it was initially Kosher).
                    He discusses a case in which it is not Nimchal
                    Shibudo, e.g. the borrower gave it to the
                    lender again at the time of the second loan.
                    Edei Mesirah Karsei (the witnesses who see a
                    document handed over empower it), so it is
                    Pasul only because it is predated.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #4 (Ro'oh, brought in Beis Yosef CM 43 Sof DH
               v'Yesh Omrim):</font></b> The witnesses thought that the money
               was already lent when they signed. Later, they saw
               when it was lent, and testified about this.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #5 (Gedulei Terumah, cited in Shach CM
               43:13):</font></b> Indeed, the Rosh (ibid.) cites Tosfos (Bava
               Metzi'a 72a DH Shtar), who says that the Gemara
               calls the document Pasul, which connotes that one 
               may not collect with it at all.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Shach, ibid.):</font></b> If so, Chachamim would
                    not need to <i>decree</i> to disqualify it lest one
                    collect from the first time! Rather, the Rosh
                    says that Tosfos totally disqualifies it even
                    when the witnesses are Kesherim, e.g. like the
                    Rosh answered.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> The Gemara asked why it is invalid to
               collect from the second date (i.e. from Meshubadim.
               Regarding Benei Chorin the date is irrelevant.) It
               should have asked why it is invalid to collect from
               Benei Chorin (and then the answer would clearly show
               that it is totally Pasul)!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Tosfos, ibid.):</font></b> The Gemara teaches that even
               if the borrower admits that he did not pay or
               witnesses say so, the document may not be used to
               collect from Meshubadim.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> How can we know that a document is
               predated? The witnesses cannot tell us, for this is
               like retraction of their testimony!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer #1 (Ba'al ha'Ma'or Reish Rosh Hashanah):</font></b> If a
               king took office in Adar, his first Nisan is called
               his second year. If a document is dated in Nisan of
               his first year, it is predated.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Answer #2 (Ba'al ha'Ma'or, ibid.):</font></b> Regarding
                    any mistake that witnesses commonly make, they
                    themselves are believed to say 'we signed on
                    this, but not on this' (Yerushalmi. Shach
                    (43:19) - e.g. they say that they signed on the
                    loan, but did not pay attention to the date.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hasagos ha'Ra'avad:</font></b> All the more so, we believe
                    other witnesses to say that the signed
                    witnesses erred. Normally, we are not concerned
                    lest two witnesses erred; I explained this
                    elsewhere.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> Answer #3 (Ramban Bava Metzi'a 72a DH
               veha'Me'ucharin, brought in Nimukei Yosef, ibid):
               They can say that it is predated when we could not
               validate the document without them. Reish Lakish
               taught that a signed document is like testimony. R.
               Meir holds that the witnesses cannot invalidate it,
               even if we could not validate it without them! That
               is when they say that it is totally invalid. Here
               they say that it is valid for Benei Chorin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (43:13):</font></b> When we have no other way to
                    validate it, they are believed to say that they
                    erred, Migo (since) they could have said that
                    it is not their signatures.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer #4 (Beis Yosef DH Aval):</font></b> Other witnesses are
               believed to say that it is predated even if we can
               validate it.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 43:7):</font></b> Chachamim made a fine that
               a predated document may be used to collect only from
               Benei Chorin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (8):</font></b> The document is valid for Benei
               Chorin only if the witnesses did not intentionally
               predate it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that witnesses are believed to say
               that they predated it ,even if their signature is
               known (we could validate the document without them).
               Similarly, regarding any mistake that witnesses
               commonly make, they are believed to say that they
               erred. Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (19):</font></b> The first opinion, the Ba'al
                    ha'Ma'or, holds that even if their signature is
                    known, they are believed even about mistakes we
                    cannot attribute to error. They can say that
                    they overlooked the date. The latter opinion,
                    Tosfos and the Rosh, holds that they are not
                    believed when their signature is known. They do
                    not discuss whether they are believed about a
                    common mistake in this case. Perhaps we need
                    other witnesses to say that the document is
                    predated! It seems that they are believed like
                    the Ramban explicitly says; we need not make
                    another argument.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If they intentionally
               predated it, the witnesses are Pesulim for signing
               Sheker, and we do not collect even from Benei
               Chorin.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE PESUL OF PREDATED DOCUMENTS? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They argue about a regular postdated document (it
                    is not evident that it was postdated). R.
                    Yehudah allows it. Since he says that we never
                    force a borrower to accept a receipt, this
                    cannot be used to swindle;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yosi disqualifies it. Since he says that
                    we force a borrower to accept a receipt, it can
                    be used to swindle. (Perhaps the borrower paid
                    part of the loan before the date, and received
                    a receipt. The lender will say that this was
                    for a different loan, for it is before the
                    (date of) this loan!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> Even like the opinion
          that we force a borrower to accept a receipt, this is
          only when he still owes part of the money.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is wrong - we force him to accept a
          receipt even when the entire loan was paid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Aba owed money to Rav Yitzchak bar Yosef; Rav
               Yitzchak said that he lost the document. R. Aba did
               not want to pay until he got back the document.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav. Yitzchak:</font></b> I will write a receipt for you!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Aba:</font></b> Rav and Shmuel say 'we do not force a
               borrower to accept a receipt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Chanina bar Papa (who was judging the case):
               We revere Rav and Shmuel greatly - however, R.
               Yochanan and Reish Lakish say that we force a
               borrower to accept a receipt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Ravin):</font></b> We force a borrower to accept a receipt.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support:</font></b> Presumably, this is correct - if not, if the
          lender lost his document, should the borrower keep the
          money?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> To the contrary! If we force a
          borrower to accept a receipt and he loses it, should the
          lender collect twice?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Yes! 'V'Eved Loveh l'Ish Malveh.'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH POSTDATED DOCUMENTS ARE VALID?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Predated loan documents are invalid.
          Postdated documents are valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Hamnuna):</font></b> This applies only to loan documents, but
          regarding documents of sale, even postdated ones are
          invalid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> If Reuven sold land in Nisan, and the document
          says Tishrei, perhaps Reuven will get money in between
          and buy back the land. After Tishrei, the buyer will show
          his document that 'proves' that he bought it 'back'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The same concern applies to loan documents!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon borrowed from Levi in Nisan, and the
               document says Tishrei, perhaps Shimon will get money
               in between and pay the loan;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Levi will claim that he lost the document. He
               will write a receipt. After Tishrei, Levi will show
               his document showing that the loan was after the
               receipt (so surely, the receipt was for a different
               loan)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Hamnuna holds that we do not force a
          borrower to accept a receipt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Yemar):</font></b> Nowadays, we write postdated
          documents and we force a borrower to accept a receipt. We
          should be concerned!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> We tell the scribe to write on a
          postdated document 'this document was postdated' (so the
          lender cannot 'prove' that he lent again after the
          receipt).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Nowadays, we write postdated
          documents that do not say 'this document was postdated.'
          We should be concerned!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> We tell the scribe to write the
          date of the document on the receipt. If he does not know
          the date, he should not put a date on the receipt (so the
          lender cannot 'prove' that he lent again afterwards).
<br>

<p>

sjt:
</p><p>
<font><b>2) WHY LOSING A 'SHTAR' MIGHT RESULT IN BEING UNABLE TO COLLECT</b></font><b>
<br>QUESTION:</b> The Mishnah and Gemara earlier discuss the various opinions among the Tana'im in the case of a partial repayment of a loan. The Tana'im disagree about whether a receipt is written, or whether the original Shtar is replaced by a new one. The Gemara here adds that even according to Rebbi Yosi, who maintains that a receipt is written for a partial repayment of a loan, one does <i>not</i> write a receipt for a <i>full</i> repayment. Rather, the lender is responsible to give back the Shtar when the borrower repays the loan. What is the Halachah in a case in which the lender claims that he lost the Shtar or that it was destroyed? In such a case, is he unable to collect the loan? The Gemara says that this is the subject of dispute among the Amora'im. Rav and Shmuel rule that the lender cannot collect the loan in such a case. Rebbi Yochanan and Reish Lakish rule that the lender may collect the loan by writing a receipt to indicate that he received payment.
</p><p>
Apparently, Rav and Shmuel are concerned that the lender (or his heirs) eventually will find the Shtar and will claim (either mistakenly or maliciously) the money again from the borrower, who might have lost the receipt. For this reason they rule that a lender who loses his Shtar cannot collect his money. The Gemara implies that the Halachah follows the view of Rebbi Yochanan and Reish Lakish.
</p><p>
The <b>NESIVOS HA'MISHPAT</b> (CM 54:1) writes that the opinion of Rav and Shmuel is very difficult to understand. A person who lends money and takes a collateral from the borrower is considered a Shomer Sachar on the collateral. If armed bandits come and steal the collateral, the lender may exempt himself from liability for the collateral by taking an oath and attesting to what happened. This is because armed bandits are considered an 'Ones' for which a Shomer Sachar is exempt. The lender, however, still collects his loan. If the borrower still must pay the lender when the lender did not secure something of monetary value (collateral) of the borrower, why should the borrower <i>not</i> have to pay when the lender merely lost the Shtar?
</p><p>
<b>ANSWER:</b> The <b>NESIVOS HA'MISHPAT</b> answers that this opinion maintains that collateral differs from a Shtar. Collateral is not actually a direct part of the loan. The borrower merely gives collateral to ensure that he will pay back money, which is not from the collateral itself. The Shtar, in contrast, considered the body of the loan, and its return to the borrower is conditional for repayment of the loan.
</p><p>
Why is the Shtar so critical? The Nesivos ha'Mishpat quotes the <b>KENESES HA'GEDOLAH</b> (82, Klalei Migu #57) who writes that a valid Shtar in the hands of a lender is considered as good as collected, since the Shtar creates a lien on the land of the borrower which remains in effect as long as the lender owns the Shtar. This active lien in the Shtar needs to be given back to the borrower, and thus the borrower is exempt from repaying until the lender gives him back the Shtar (unless there are witnesses that the Shtar was burned, in which case the Shtar is not in danger of being found and used again). (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LAWS OF POSTDATED DOCUMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> We do not do this nowadays!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> Chachamim taught people how to
          protect themselves from swindlers. If people do not do
          so, they cause their own loss.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rabah bar Rav Shila (to scribes):</font></b> When you write an
          Akniasa document (in which a Kinyan Chalipin was done),
          if you know the date of the Kinyan, write it. (The buyer
          truly has Acharayus from that day.) If not, write the
          current date, lest it look like Sheker.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav and Rav Huna would tell scribes to write in the
          document the city they are writing in, and not where they
          were commanded to write the document.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WE DO NOT EXCHANGE DOCUMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If someone has a loan document for 100, and
          requests to get two documents of 50 each, we do not
          accede.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim enacted this. It is good for the
          lender and the borrower;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is good for the lender, for (if the borrower paid
               half,) it pressures the borrower to finish paying
               (lest he lose his receipt, and the lender will claim
               the entire 100 from him);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is good for the borrower, for (if he pays half,)
               the lender's document will be blemished (and he
               cannot collect the rest without swearing).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> If someone has two loan documents for 50 each,
          and requests to get one document of 100, we do not
          accede.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim enacted this. It is good for the
          lender and the borrower;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is good for the lender, for now (if the borrower
               pays half,) the lender's document will not be
               blemished;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is good for the borrower, for now (if he pays
               half,) he will not be pressured to finish paying
               (due to fear of losing a receipt).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOCUMENTS FOR PEOPLE WITH THE SAME NAME</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two brothers, Reuven (who is rich) and
          Shimon (who is poor) inherited a bathhouse and an
          olivepress:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If their father made them to rent out, they do
               so, and share the income;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the father made them for his own use, the
               brothers use it themselves;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (If Shimon wants to rent them out, because he has
                    little use for them,) Reuven can refuse, and
                    say 'go buy slaves and they can bathe. Buy
                    olives and press them!'
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If two men in a city have the same name (Yosef ben
          Shimon), neither can use a document to claim money from
          the other. No one can use a document to claim money from
          either of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi found among his documents a note saying
               'the document of Yosef ben Shimon was paid' (and he
               does not know which), he cannot collect a loan from
               either of them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	To avoid these problems, documents for them should
          include the grandfather's name;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If their grandfathers had the same name, we add a
               sign to distinguish them (e.g. the short Yosef ben
               Shimon);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there is no sign to distinguish them, if one
               is a Kohen, we use that for the sign.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CONCERN LEST THE BEARER IS NOT ENTITLED TO COLLECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara):</font></b> A document came to Rav Huna's Beis Din. It
          said 'I, Ploni ben Almoni, borrowed 100 Zuz from you.'
<br>
<br>

sjt:
<font><b>1) WHY THE SHTAR SHOULD CONTAIN THE PLACE WHERE IT WAS WRITTEN, NOT WHERE THE EVENTS TOOK PLACE</b></font><b>
<br>OPINIONS:</b> Rav and Rav Huna both told their scribes, 'When you are instructed to write a Shtar in Shili (where the witnesses will sign the document), write in the Shtar that it was written in Shili, despite the fact that the document is attesting to an event which happened in Hili. Likewise, when you are in Hili, write that the document was written in Hili, not in Shili.' <b>TOSFOS</b> (DH Kisvu) explains that the cities of Hili and Shili are used as examples in order to teach that Rav and Rav Huna's directive applies even to two cities that are close to each other, such as Shili and Hili.
</p><p>
What is the reasoning behind this directive of Rav and Rav Huna?
</p><p>
(a) The <b>RIF</b> and <b>ROSH</b> have a text of the Gemara which explicitly states that the reason for this directive is so that the Shtar should not appear to be false.
</p><p>
(b) The <b>MORDECHAI</b> (#646) quotes the <b>RAVYAH</b> who understands that the place where the Shtar is written is critical, so that people who are familiar with the signatures of the witnesses can be traced more easily to verify the signatures on the Shtar. (This is especially relevant in a time when people sign with symbols or do not sign with their full name; see Insights to Bava Basra 161a and 161b.)
</p><p>
(c) The Mordechai quotes <b>RASHI</b> who seems to give a more basic reason for not writing the place of the event in the Shtar. If an event took place in Shili and the Shtar was written in Hili, if the scribe writes in the Shtar that it was written in Shili, one of the parties might bring witnesses who claim that the witnesses on the Shtar could not have signed on the Shtar at that time, since on the day of the signing they were in Hili, not in Shili. This would render the witnesses who signed the Shtar Edim Zomemim. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>FROM WHEN ARE ZOMEMIM WITNESSES ON A DOCUMENT DISQUALIFIED?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 171b (Mishnah):</font></b> Postdated loan documents are
               Kesherim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Yo'av and Michah were signed on a
               document dated 'Nisan 1, in Shemitah (in the place
               Ploni)', and Reuven and David said 'they were with
               us that day elsewhere (too far to get to Ploni the
               same day)', the document and its witnesses are
               Kesherim. We assume that it was postdated.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Beraisa is a bigger Chidush. Even though it is
               unlikely that one would postdate a document and give
               a date in Shemitah, since it looks suspicious
               (people usually refrain from lending in Shemitah,
               lest the loan be cancelled), we assume that this was
               the case. Shemitah does not cancel loans until the
               end of Shemitah, therefore the document is valid.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rabah bar Rav Shila (to scribes):</font></b> When you write an
               Akniasa document (in which a Kinyan Chalipin was
               done), if you know the date of the Kinyan, write it.
               (The buyer truly has Acharayus from that day.) If
               not, write the current date, lest it look like
               Sheker.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Sanhedrin 27a (Abaye):</font></b> If Shimon testified and was
               Huzam, all testimony that he gave or will give after
               his fabricated testimony are invalid;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rava):</font></b> Only testimony he gives after he was Huzam
               is invalid.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The Halachah follows Abaye against Rava in six
               places. This is one of them.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Kama 28b):</font></b> Some disqualify an Ed Chasimah
               (a witness who signed a document) who was Huzam from
               the date on the document. This is wrong. The only
               way to be Mezim Edei Chasimah is if it is dated
               (e.g.) Nisan 10 in place Ploni, and others testify
               that that day they were too far away to reach Ploni
               that day. If so, we cannot disqualify them from
               Nisan 10, for perhaps they signed later! Rather, an
               Ed Zomem is disqualified from when he testified in
               Beis Din, e.g. he testified on Adar 10 and was not
               Huzam until Nisan 10. The Yerushalmi supports this.
               If witnesses know when the document was signed, the
               Edei Chasimah are disqualified from that day.
               Alternatively, if witnesses saw the document in the
               hands of the owner on a certain day, the Edei
               Chasimah are disqualified from that day, because a
               signed document is like testimony accepted in Beis
               Din. They are Resha'im from when they signed, like
               witnesses who signed on a document with Ribis. This
               is only if they testified in Beis Din that they
               signed the document on the date written. If not, a
               Beraisa teaches that they and the document are
               Kesherim, for we assume that it was postdated. I
               wrote this to explain the opinion that disqualifies
               from when they signed. It is difficult; the
               Yerushalmi explained only regarding testimony in
               Beis Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> Even if the document
                    says that it was written on the day it says, if
                    it is a Hakna'ah document (in which the
                    borrower puts a lien on his property from when
                    it is written) one cannot disqualify the
                    witnesses retroactively, for one may write it
                    later and date it from when the Kinyan was
                    made. If today witnesses say that Ploni
                    borrowed three years ago and they were Huzam,
                    surely they are disqualified only from today!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ra'avan (Sanhedrin Perek Echad Dinei, DH
                    Shtar):</font></b> R. Chananel says that if, in Nisan (in
                    the year) 798, witnesses affirm their
                    signatures on a document dated Nisan 1, 797,
                    and in Elul 798 they were Huzam, they are
                    disqualified from Nisan 798, not from Nisan
                    797. Perhaps they signed the day they validated
                    their signatures, and until then they were
                    Kesherim. Why is this Hazamah? Even if they
                    were elsewhere on Nisan 1, 797, perhaps they
                    signed the previous Elul and postdated the
                    document! Since we cannot be Mezim them, there
                    is no Drishah v'Chakirah of the testimony (we
                    are unsure when it really was)! It seems that
                    we say that a document was postdated only when
                    we are forced to, e.g. it is dated on Shabbos
                    or Tishrei 10, or a loan in Shemitah (people do
                    not lend then, lest it be cancelled at the end
                    of the year). We must say that R. Chananel
                    discusses a case when nothing forces us to say
                    that it was postdated. If we would not say so,
                    there could never be Hazamah of testimony in a
                    document.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Perhaps he holds that if Edei Chasimah
                    told Beis Din that they signed on the date
                    written, and were Huzam, only this oral
                    testimony was Huzam.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Toras Chaim (Sanhedrin 32a):</font></b> Perhaps a
                    postdated document is Kosher only if witnesses
                    say that they saw when it was signed that it
                    was postdated.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal (Gra CM 34:13):</font></b> If there is a Safek
                    about when a document was written, we assume
                    that it was postdated to be Machshir it (Tosfos
                    Sanhedrin 32a DH Chaishinan).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Edus 19:3):</font></b> If witnesses said that
               they wrote a document on the date written, and today
               other witnesses know the day they signed, or saw the
               document signed on a certain day, and the Edei
               Chasimah were Huzam, they are disqualified from when
               we know that they signed. A signed document is like
               testimony accepted in Beis Din at the time of the
               signatures. If there are no witnesses who saw their
               testimony (i.e. when they signed) or saw the
               document beforehand, they are disqualified only from
               when they validated their signatures in Beis Din and
               said that the document was written on the date.
               Perhaps this very day they signed it and falsely
               testified in Beis Din that it was written on the
               date written, which is years ago.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (7:6):</font></b> Abaye says that an Ed Zomem is
               disqualified from when he testified. E.g., they
               signed a document dated Nisan 1, and they testified
               in Beis Din that they wrote and signed the document
               on the date written, and others testify that that
               day they were in a different place. They are
               Resha'im from when they signed. Rava says that they
               are disqualified only from when they are Huzam, for
               Edim Zomemim is a Chidush. The Halachah follows
               Abaye.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 34:9):</font></b> If witnesses said that
               they wrote a document on the date written, and
               (today) other witnesses know the day they signed, or
               saw the document signed on a certain day, and the
               Edei Chasimah were Huzam, they are disqualified from
               when we know that they signed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (22):</font></b> This is when the witnesses who saw
                    them sign did not see the date and place
                    written in the document. If they saw, they
                    themselves are Mezimim (testify that the Edei
                    Chasimah signed testimony that they did not
                    witness).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Taz):</font></b> If they saw them sign the
                    document, why must the Edei Chasimah say when
                    they signed?! We know this without them!
                    Rather, we discuss a document with a Kinyan,
                    which is Kosher even if it was written days
                    after the Kinyan. Therefore, they can be Huzam
                    only if they say that they signed it on the
                    date written.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If there are no witnesses
               who saw their testimony (i.e. when they signed) or
               saw the document beforehand, they are disqualified
               only from when they validated their signatures in
               Beis Din and said that the document was written on
               the date. Perhaps this very day they signed it and
               falsely testified in Beis Din that it was written on
               the date written, which is years ago.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>FROM WHEN ARE ZOMEMIM WITNESSES DISQUALIFIED? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 (Rashbam) Rav Huna:</font></b> 'From you' could mean
          even from the Reish Galusa or Shevor Malka (the executive
          head of Yisrael in exile, or the Persian king, who
          normally do not lend money. We are concerned lest the
          bearer of the document is not the lender, so he cannot
          collect.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Rav Huna - Question:</font></b> Could 'from
          you' mean even from the Reish Galusa or Shevor Malka
          (i.e. even one of them could collect), or is it
          meaningless (and no one may collect)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah - Beraisa - Aba Sha'ul):</font></b> If a Get has witnesses
          but no date, but it says 'I divorced you today', it is
          Kosher.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> We assume that 'today' means the day
               that it comes in front of us;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Likewise, 'from you' means the person holding it!
               (Tosfos - this answers Rav Huna's question.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Perhaps Aba Sha'ul holds like R.
          Eliezer, who says that a document is empowered by the
          witnesses who saw it given (therefore, the Get is Kosher
          without any date), but here we are concerned lest the
          lender dropped it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> We are not concerned lest it was
          dropped.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is his source that we are not concerned
          lest it was dropped?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> If two men in a city have the same
          name (Yosef ben Shimon), neither can use a document to
          claim money from the other, and no one can use a document
          to claim money from either of them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Either of them can use a document to
               claim money from someone else.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we are concerned lest a document was dropped,
               neither of them should be able to collect (perhaps
               the other dropped it)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> There, the only concern is lest one
          Yosef ben Shimon dropped it (Tosfos; Rashbam - and that
          the other found it). We are not concerned for this;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In Rav Huna's case, the document could have
               fallen from anyone, so we are concerned.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'EVEN FROM THE REISH GALUSA, AND EVEN FROM SHEVOR MALKA'</b></font><b>
<br>OPINIONS:</b> The Gemara describes an interesting Shtar that was brought to the Beis Din of Rav Huna. The Shtar read, 'I am Ploni, the son of Ploni, who has borrowed one hundred [Zuz] from you.' Someone came to Beis Din and demanded that Ploni pay him the money which he had lent to Ploni. Rav Huna noticed that the Shtar did not state the name of the lender. Rav Huna said, 'From you, and even from the Reish Galusa, and even from Shevor Malka.' What did Rav Huna mean to say?
</p><p>
(a) The <b>RASHBAM</b> (DH Amar Rav Huna) explains that Rav Huna was worried that this Shtar fell from the possession of the lender, which could have been anyone -- even the Reish Galusa or Shevor Malka (see Background to the Daf), and this person picked it up and now claims the loan.
</p><p>
The <b>RITVA</b> has difficulty with the Rashbam's explanation. The Gemara compares this case to the case in a Beraisa, which discusses a Get which does not have a date. Aba Shaul says that if the Get reads, 'I have divorced you today,' the Get is valid. This has nothing to do with the fact that the Get might have been lost.
</p><p>
<b>TOSFOS</b> (DH Minach) also has difficulty with the Rashbam's explanation. According to the Rashbam, why did Rav Huna say that we must be concerned that the Shtar fell from the Reish Galusa or Shevor Malka, any more than from an ordinary person?
</p><p>
(b) The <b>RITVA</b> therefore explains that Rav Huna was not worried that the Shtar was lost. Rather, Rav Huna meant that since the Shtar contains no proof that the claimant is in fact the lender, the Shtar is invalid. This is why the Gemara quotes Aba Shaul as proof that one does not need absolute and specific detail in matters such as dates and names. As long as the details are inferred in the Shtar, the Shtar is considered valid.
</p><p>
(c) <b>TOSFOS</b> disagrees with the Rashbam and Ritva, and he explains that Rav Huna was simply unsure about how to rule. When he said, 'From you, even from the Reish Galusa, and even from Shevor Malka,' he meant it as a question: Is it possible that even if the Reish Galusa or Shevor Malka -- who are unaccustomed to lending money to ordinary citizens -- would claim this debt, that Beis Din would allow him to take the money because it says in the Shtar 'from you'? The <b>MAHARSHA</b> explains that Tosfos learns that Rav Huna's doubt was whether or not we should suspect that the Shtar fell from someone.
</p><p>
The Rashbam (DH Amar) discusses an explanation similar to that of Tosfos, but he dismisses it. The Rashbam understands that one could suggest that Rav Huna meant that the Shtar should be valid, even if the Reish Galusa -- who does not usually claim debts -- would claim to be the lender. This cannot be correct, though, because when the Gemara later concludes that this indeed is the case, the Gemara says that 'from you' implies 'whoever possesses the Shtar.' The Rashbam says that according to this explanation, this is the terminology that Rav Huna should have used instead of mentioning that the Shtar could even be from the Reish Galusa. However, as Tosfos points out, this question poses no difficulty to his explanation that Rav Huna was in doubt about how to rule. Rav Huna asked out loud whether we would allow even the Reish Galusa, who does not usually lend money privately, to collect with such a Shtar. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES 'MESIRAH' SUFFICE TO TRANSFER A DOCUMENT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (against Abaye and Rabah - Beraisa):</font></b> Just like
          no one can use a document to claim money from either of
          them, neither of them can use a document to claim money
          from someone else.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What do the Tana of our Mishnah and the
               Tana of this Beraisa argue about?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> (Neither is concerned lest one dropped
               it and his namesake found it.) They argue about
               whether or not a document is acquired by Mesirah
               (handing it over):
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Tana of our Mishnah holds that a document is
                    acquired by Mesirah. (If one gave it to the
                    other, the bearer is entitled to collect);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The Tana of the Beraisa holds that a
                    document is not acquired by Mesirah (if the
                    bearer received it from his namesake, this does
                    not entitle him to collect).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2:</font></b> All agree that a document is acquired
               by Mesirah;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They argue about whether the bearer must prove
                    that it was given to him. The Tana of our
                    Mishnah does not require him to bring proof,
                    the Tana of the Beraisa requires him to bring
                    proof.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> A document is acquired by Mesirah. The bearer
          must prove that it was given to him;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> The bearer need not prove that it was given to
          him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Support (Abaye, for himself - Beraisa):</font></b> If
          Yehudah is holding a loan document, and he claims that
          his brothers gave it to him, and they claim that he
          grabbed it. he must bring proof.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Also in general, the bearer must
               bring proof.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> No, this applies only to brothers,
          for they often take things from each other.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 - Support (Rava, for himself - Beraisa):</font></b> If
          Yehudah is holding a loan document, and he claims that
          his brothers gave it to him, and they claim that he
          grabbed it. he must bring proof.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This applies only to brothers, for
               they often take things from each other. Normally,
               the bearer need not bring proof.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> No, it applies to everyone. The
          Beraisa discusses brothers, for this is a Chidush;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since they often take things from each other,
               they guard documents from each other. One might have
               thought that Yehudah need not bring proof. The
               Beraisa teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOCUMENTS FOR AND AGAINST NAMESAKES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Just like either of them can use a
          document to claim money from someone else, one of them
          can use a document to collect from the other;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why does this Tana argue with the Tana of our
               Mishnah?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about whether we write a document
          for the borrower in the absence of the lender;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana of our Mishnah holds that we write a
               document for the borrower in the absence of the
               lender. Perhaps the bearer asked a scribe and
               witnesses to write a document for him to borrow from
               his namesake, and now he claims that he lent to his
               namesake. (Therefore, he cannot collect.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Tana of the Beraisa holds that we do not
               write a document for the borrower in the absence of
               the lender.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Levi found among his documents a note
          saying 'the document of Yosef ben Shimon was paid', he
          cannot collect a loan from either of them.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Inference:</font></b> Had he not found this receipt, he could have
          collected.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Contradiction (Mishnah):</font></b> No one can use a document to
          claim money from either of them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (R. Yirmeyah):</font></b> The case is, Levi's documents
          have the grandfather's name (proving to which one he
          lent).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The grandfather indicates which one
               paid his loan!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Hoshaya):</font></b> The case is, the loan
               documents have the grandfather's name,but the
               receipt does not.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> The Mishnah means, if Levi found
          among his documents a note saying 'the document with
          which I borrowed from Yosef ben Shimon was paid', neither
          can collect a loan from him (neither can prove that his
          document was not paid).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Documents for them should include the
          grandfather's name...
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If their grandfathers had the same name, and
          both are Kohanim (or Yisraelim), we write more ancestors
          (until we distinguish them).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A DOUBT ABOUT WHICH DOCUMENT WAS PAID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven told his son 'one of my documents was
          paid. I do not know which', his son cannot collect any of
          them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If two documents were against the same person, he
               may collect the smaller, but not the larger.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rava):</font></b> If Shimon told Levi 'one of my
          documents (against you) was paid', he may collect the
          smaller, but not the larger;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'your debt to me was paid', he cannot
               collect any document against him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> If so, will you say that if a
          document said 'my field is sold to you', the larger field
          is sold, and if it says 'the field that I have is sold to
          you', all his fields are sold?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> No. The bearer of a document has the
          lower hand.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>COLLECTING FROM AN AREV</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven lent to Shimon, and Levi was an
          Arev (guarantor), Reuven may not collect from Levi.
<br>
<br><font size='+1' color='darkblue'><center><b>173b----------------------------------------173</b></center></font>
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven stipulated (at the time of the loan)
               'on condition that I can collect from whichever of
               you I want', he can collect from Levi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, if Shimon has
               property, in any case Reuven cannot collect from
               Levi.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Similarly, R. Shimon ben Gamliel says, if Yehudah was
          an Arev for David (in case David will need) to pay his
          wife's Kesuvah, and he is divorcing her, David must vow
          Al Da'as Rabim (according to the will of many others, so
          the vow cannot be annulled) that he will not benefit from
          her, lest the divorce is just a scheme to collect from
          Yehudah, and David plans to remarry her.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why can't he collect from the Arev?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rabah and Rav Yosef):</font></b> The Arev can say 'I
          took responsibility only in case Shimon will die or flee.
          He is here!'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rav Nachman):</font></b> That is like Persian law!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> Just the contrary! The Persians
               collect from the Arev first!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He means that is like the Persian law,
               i.e. it is illogical.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> The Mishnah means that he may
          not collect from Levi <i>first</i>.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If Reuven lent to Shimon, and Levi
          was an Arev, Reuven may not claim from Levi first;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven stipulated 'on condition that I can
               collect from whichever of you I want', he can claim
               from Levi first.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Huna):</font></b> What is the source that an Arev
          becomes obligated?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> 'Anochi E'ervenu' (Yehudah was an
          Arev for Binyamin).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Rav Chisda):</font></b> This was not regular Arvus,
          rather Kablanus (a special kind of Arvus, as if he
          himself received the loan, like Reuven had offered) -
          'Tenah Oso Al Yadi va'Ani Ashivenu.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (R. Yitzchak):</font></b> It says 'Lekach Bigdo Ki Arev
          Zar', and 'Beni Im Aravta... Nokashta v'Imrei Ficha...
          Lech Hisrapes u'Rhav Re'echa';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If you owe him money (on behalf of the borrower),
               pay him. If not (rather, you insulted him), bring
               friends to request his pardon.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> R. Yehudah and R. Yosi argue about whether
          an Arev becomes obligated:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi says that Asmachta (an exaggerated
               promise) is binding, and also an Arev becomes
               obligated (he does not benefit, yet he accepts to
               pay if the borrower will not);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says that Asmachta is not binding, so
               an Arev does not become obligated.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> We rule that Asmachta is not
          binding, yet an Arev becomes obligated!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Arvus is not Asmachta. The Arev benefits.
          Since the lender trusts him (and lends the borrower due
          to the Arev), he decides absolutely to accept
          responsibility as if he himself borrowed.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stipulated 'on condition that I
          can collect from whichever of you I want'...
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> This is only if Shimon has no
          property. If he has, Reuven cannot collect from Levi.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Seifa - R. Shimon ben Gamliel):</font></b> If Shimon has
          property, in any case Reuven cannot collect from Levi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> The first Tana holds that even in this
               case, he can collect from Levi!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah is abbreviated. It means as
          follows. If Reuven lent to Shimon, and Levi was an Arev,
          Reuven may not collect from Levi;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven stipulated 'on condition that I can
               collect from whichever of you I want', he can
               collect from Levi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is if Shimon has no property. If he has,
               Reuven cannot collect from Levi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Levi is a Kablan, even if Shimon has property,
               Reuven can collect from Levi.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon ben Gamliel says, if Shimon has
               property, Reuven cannot collect from an Arev nor
               from a Kablan.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> The Halachah always follows R.
          Shimon ben Gamliel in a Mishnah, with three exceptions:
          our Mishnah about an Arev, the case of a conditional Get
          in Tzidon, and a litigant who thought that he did not
          have a proof, and later found one.
<br>

<p>

sjt:
<font><b>1) PROOF TO ONE'S OWNERSHIP OF A 'SHTAR'</b></font><b>
<br>QUESTION:</b> The Gemara gives a number of ways to reconcile the view of the Tana of the Mishnah with the view of the Tana of the Beraisa. The Tana of the Mishnah says that either one of the two men named Yosef ben Shimon may present a Shtar Chov against another party (and we are not concerned that it fell from the other Yosef ben Shimon and this one found it). The Tana of the Beraisa argues and says that neither one of the two men named Yosef ben Shimon may present a Shtar Chov against another party, because the debtor may claim that the Shtar was written for the other man with the same name.
</p><p>
The Gemara first suggests that the Tana'im disagree about whether 'Osiyos Niknos b'Mesirah.' The Gemara then suggests that both Tana'im agree that 'Osiyos Niknos b'Mesirah,' and they disagree about whether or not the bearer of the Shtar needs to bring proof that it is rightfully his. The Tana of the Mishnah maintains, like Rava, that he does not need to bring proof that the Shtar is his. The Tana of the Beraisa maintains, like Abaye, that he <i>does</i> need to bring proof that the Shtar is rightfully his (either that the Shtar was written for him in the first place, or that it was given to him by the original lender in order to transfer ownership of the debt to him).
</p><p>
Why should the bearer of the Shtar need to bring proof that the debt belongs to him, according to Abaye and the Tana of the Beraisa? The Gemara at this point maintains that there is no concern that the Shtar fell from one Yosef ben Shimon and the other Yosef ben Shimon found it. Hence, since this Yosef ben Shimon is in possession ('Muchzak') of the Shtar, there is no reason to doubt that he is the owner of the Shtar, just as there is no reason to doubt that any other item of Metaltelin in his possession belongs to him. (<b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Gemara later (end of 173a) teaches the rule that 'Yad Ba'al ha'Shtar Al ha'Tachtonah' -- the bearer of the Shtar has the 'lower hand' and must bring proof in a case of a doubt (because of the principle, 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'). The Tana of the Mishnah and the Tana of the Beraisa disagree about whether there is a significant doubt in this case such that the rule of 'Yad Ba'al ha'Shtar Al ha'Tachtonah' applies. The Tana of the Beraisa maintains that the possibility that the other Yosef ben Shimon deposited this Shtar with the Yosef ben Shimon who is now holding it, or the possibility that this Yosef ben Shimon stole the Shtar from the other Yosef ben Shimon, is enough of a concern (despite the low probability that it occurred) to create a doubt about the true ownership of the debt, even though one Yosef ben Shimon is presently holding the Shtar. The Tana of the Mishnah, on the other hand, maintains that this is not a substantial enough concern to create a doubt, since it is highly unlikely that the other Yosef ben Shimon deposited his Shtar with this Yosef ben Shimon, or that this Yosef ben Shimon stole it from the other one. (See <b><b><b>RI</b></b></b> cited by <b>TOSFOS</b> in Yevamos 116a, DH Osiyos.)
</p><p>
(b) The <b>RASHBA</b> suggests that the Tana of the Beraisa maintains that being in possession ('Muchzak') of a Shtar is not the same as being in possession of other mobile property (where the very fact that he is holding the item is proof that it belongs to him). All other items are made to be used themselves, and, therefore, when a person hands over an item to another person, that act signifies a total transfer of ownership. The item has no other usage or purpose other than the use obtained from the body of the item itself. A Shtar is different. The use of a Shtar does not come from the actual paper of the document. Rather, the purpose of a Shtar is to represent a Shibud, an obligation, which one person has to another person. Therefore, the fact that one person is holding the Shtar does not show that he is in possession of the Shibud that the Shtar represents, even though his possession of the Shtar shows that he owns the piece of paper (and is entitled to use it as a bottle stopper if he wants). Only when he brings proof that the Shtar was written for him, or that it was given to him with the words, 'Acquire hereby this Shtar and the Shibud in it,' is there certainty that the Shibud itself belongs to him as well.
</p><p>
In contrast, Rava and the Tana of the Mishnah maintain that the bearer's possession of the Shtar suffices as proof that the Shibud was given to him. Since he is holding the Shtar, we assume that the Shtar was given to him in order to give him ownership of the debt written therein, as people usually do not give others a Shtar merely for the purpose of stuffing their bottles with it.
</p><p>
(c) The <b>RASHBA</b> gives another answer (and refutes his first one) and says that the case of a Shtar in the hands of a person who has the same name as another person in that town is different. We may assume that the bearer of the Shtar made sure that witnesses were present when the Shtar was written for him, or when it was given to him by the other Yosef ben Shimon, in anticipation of the debtor's future challenge to his rightful ownership of the debt. Therefore, he must present those witnesses when he wants to collect with this Shtar.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>COLLECTING FROM AN AREV</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ameimar):</font></b> R. Yosi says that Asmachta (an
               exaggerated promise) is binding. If so, also an Arev
               (guarantor) becomes obligated (he does not benefit,
               yet he is liable to pay if the borrower will not).
               R. Yehudah says that Asmachta is not binding, so an
               Arev does not become obligated.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Rav Ashi):</font></b> We rule that Asmachta is not
               binding, yet an Arev becomes obligated! Arvus is not
               Asmachta. The Arev gets Hana'ah (pleasure). Since
               the lender trusts him (and lends the borrower due to
               the Arev), he decides absolutely to accept
               responsibility as if he himself borrowed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 174b:</font></b> The Halachah is, an Arev is obligated whether
               or not he (the borrower) has (property).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 175b (Mishnah):</font></b> If an Arev accepted Arvus in a
               document underneath the signatures, the lender can
               collect from Bnei Chorin (of the Arev). A case
               occurred, and R. Yishmael ruled like this.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ben Nanas:</font></b> He does not collect at all! If Levi saw
               Shimon (the lender) choking the borrower, and said
               'leave him alone, and I will give to you', Levi is
               exempt, for Shimon did not lend due to Levi. An Arev
               is liable if he said 'lend to him, and I will give
               to you', for the loan was given due to the Arev.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 176a:</font></b> Ravin said that R. Yishmael argues even in a
               case of choking, and the Halachah follows him even
               there.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> In a case of choking, if the Arev
               made a Kinyan to obligate himself, he is obligated.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Inference:</font></b> If it was not a case of choking, no
               Kinyan is required! This argues with Rav Nachman.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Nachman):</font></b> An Arev of Beis Din does not
                    need a Kinyan.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Inference:</font></b> A regular Arev needs a Kinyan!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> The Halachah is, an Arev at the time of the loan
               (when the money was given) does not need a Kinyan.
               An Arev after the loan needs a Kinyan. An Arev of
               Beis Din does not need a Kinyan. With the Hana'ah
               that he is trusted, he resolves to obligate himself.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 25:1):</font></b> If Reuven lent to
               Shimon, and afterwards Levi said 'I am an Arev', or
               Reuven claimed from Shimon in Din and Levi said
               'leave him. I will be an Arev for you', or Shimon
               was choking Reuven to make him pay, and Levi said
               'leave him alone, and I will give to you', Levi is
               exempt. This is even if he said 'I am an Arev in
               front of Beis Din.' If they acquired frm him for
               this money, in all these cases, whether in front of
               Beis Din or in front of the lender, he is obligated.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (2):</font></b> If Levi said at the time of the loan
               'lend to him, and I am an Arev', he is liable. No
               Kinyan is needed. Similarly, if Beis Din made him an
               Arev, he is liable even if they did not acquire from
               him. E.g. if Beis Din wanted to collect from a
               borrower, and Levi said 'leave him. I will be an
               Arev for you', since he enjoys Beis Din's trust in
               him, through that Hana'ah he obligates himself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Teshuvas Rosh (69:7, cited in Beis Yosef Sof Siman
               126):</font></b> Reuven bought grain from Shimon for a set
               price, and Shimon wrote a loan document against him.
               Before acquiring (liability), Reuven asked who will
               give the grain, and Shimon said 'Yehudah will.'
               Yehudah agreed, and Reuven accepted (the debt). Now,
               Reuven demands the grain, and Yehudah says 'when I
               accepted, I did not have anything of Shimon's. Also,
               if I must give to Reuven, I need not give more than
               the value of the grain when Reuven bought it, not at
               the higher current price.' The law is, since Reuven
               did not want to obligate himself until Yehudah
               accepted to give the grain, this is like 'give to
               him, and I will pay you', which is a Kablan, i.e. an
               Arev whom one may demand payment from him before
               approaching the borrower.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Hagahos Ashri (Bava Kama 9:16):</font></b> R. Yo'el says that a
               total professional (who erred about the validity of
               a coin) is exempt even if he said 'see, I rely on
               you.' An amateur is liable only if he said this. R.
               Efrayim says that if Ploni asked about a coin, and a
               professional said that it is valid, Ploni must
               accept it, therefore he is liable even if Ploni did
               not say 'see, I rely on you.' One need not buy or
               accept a security (so one who gave mistaken judgment
               about these matters is exempt, unless he was told
               'see, I rely on you').
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shiltei ha'Giborim (Bava Basra 80b 2):</font></b> If
                    Reuven wanted to lend to Shimon and asked Levi
                    if he is well-off and proper to lend to him,
                    and Levi said that he is good, and it turned
                    out that Shimon had no property and the loan
                    was lost, if Reuven said to Shimon (it seems
                    that this should say 'to <i>Levi</i>' - <b><b><b>PF</b></b></b>) 'see, I
                    rely on you', he is liable for the full loss.
                    If he did not say this, R. Yo'el would
                    obligate, and R. Efrayim would exempt.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 129:2):</font></b> If Levi said at the time
               of the loan 'lend to him, and I am an Arev', he is
               liable. No Kinyan is needed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kasuv):</font></b> A Teshuvah in Sefer
                    Chazeh ha'Tenufah says that if a seller wanted
                    an Arev, and Moshe agreed to be an Arev after
                    Ploni already put on the garment, this is <i>not</i>
                    considered an Arev after the money was given.
                    Since he did not want to sell without an Arev,
                    Ploni did not acquire it through wearing it
                    until Moshe agreed to be an Arev.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Kosav b'Mordechai):</font></b> The
                    Mordechai (Bava Basra 652) says that if the
                    lender relied on the Arev and returned the
                    document or security, this is like an Arev at
                    the time of the loan.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (1 DH u'Mah she'Chosav Af):</font></b> The Gemara
                    explained why Arvus works at the time of the
                    loan, even though it is Asmachta. Why does it
                    help later through a Kinyan? Asmachta acquires
                    only in an esteemed Beis Din! It seems that
                    even after the loan, he gets some Hana'ah from
                    the fact that he is trusted, and this joins
                    with the Kinyan, to be like much Hana'ah at the
                    time of the loan, which works without a Kinyan.
                    We can prove this from an Arev for Beis Din,
                    which works after the loan without a Kinyan,
                    due to the Hana'ah that Beis Din trusted him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is even if he did not explicitly become
               an Arev, just he told David 'lend to him, for he is
               Batu'ach (financially secure)', and David relied on
               him and did so, and it turned out to be false. Levi
               is liable, for it is as if he was an Arev.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> R. Yerucham explains that this is when
                    he was not Batu'ach at the time Levi said this.
                    If he was Batu'ach, and afterwards faltered,
                    Levi is exempt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (7):</font></b> The Yam Shel Shlomo (Bava Kama 9:24)
                    says that Levi is exempt unless Reuven said
                    'see, I rely on you.' This is even according to
                    the opinion that obligates a moneychanger who
                    erred (and said 'accept this coin. It is
                    valid') even if he did not say 'see, I rely on
                    you', for here Levi did not need to accept
                    liability. R. Yerucham says that he is not less
                    liable than a moneychanger. The Rema (306:6)
                    rules that a moneychanger must say this (to be
                    liable). Why didn't he say so here? This is
                    especially difficult according to the Yam Shel
                    Shlomo, who says that here all agree; the
                    Mordechai and Hagahos Ashri (Bava Kama 116 and
                    9:16) hold like the Yam Shel Shlomo. We must
                    say that the Rema's words 'he relied on him'
                    mean that there was evidence that he relied on
                    him, and he knew this. The Rif (Bava Kama 35b),
                    Rambam (Hilchos Sechirus 10:5) and Shulchan
                    Aruch (306:6) say (about a moneychanger) that
                    such evidence is like saying 'see, I rely on
                    you.' The Bach says that here, he actually said
                    so. The Rema and R. Yerucham connote otherwise.
                    In any case if he (the lender) knows (the
                    borrower) well, e.g. he is his brother or
                    partner who knows his affairs and principal and
                    that he does not owe others, even if he said
                    'see, I rely on you', he is exempt.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (8):</font></b> Levi should not have said that
                    Shimon is Batu'ach, for one can never know
                    this, even if he is his son or father, even if
                    he saw that he has much gold and silver and
                    coins. Perhaps it is not his, or he owes
                    others. However, if brothers shared a big
                    inheritance and he knows that his brother did
                    not owe anyone beforehand, or he was his
                    partner for a while and knew his partner's
                    share and that he did not owe anyone, and later
                    it became known why he lost his wealth, and he
                    [did not] know, this is like Ones, and he is
                    exempt even if he said 'see, I rely on you'. He
                    need not swear Heses that he did not know, for
                    the lender cannot claim 'you <i>surely</i> knew'.
                    All the more so he is exempt if he was Batu'ach
                    and later faltered.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Similarly, if Beis Din made
               him an Arev, he is liable even if they did not
               acquire from him. E.g. if Beis Din wanted to collect
               from a borrower, and Levi said 'leave him. I will be
               an Arev for you', since he benefits from Beis Din's
               trust in him, through that Hana'ah he obligates
               himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> This is even not at the time of the
                    loan, and without a Kinyan.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ARVUS AND KABLANUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If Levi told Reuven 'lend to Shimon and I
          will be an Arev', 'lend to him and I will pay', 'lend to
          him and I am liable'; or 'lend to him and I will give',
          Levi becomes an Arev;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give to him and I will be a Kablan',
               'give to him and I will pay', 'give to him and I am
               liable'; or 'give to him and I will give', he
               becomes a Kablan.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If he said 'lend to to him and I will
               be a Kablan', or 'give to him and I will be an
               Arev', what is the law?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Yitzchak):</font></b> If he said that he will be
               an Arev, he is an Arev (whether he said 'give' or
               'lend'), if he said that he will be a Kablan, he is
               a Kablan.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> In all of Rav Huna's cases he becomes a
          Kablan, except for 'lend to him and I will be an Arev'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> In all of Rav Huna's cases he becomes an Arev,
          except for 'give to him and I will give'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mar bar Ameimar):</font></b> If he said 'give to him and I will
          give', Reuven cannot claim from Shimon (the borrower).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is wrong. Shimon is exempt only if the
          Arev took the money from the lender. (Then, the Arev is
          the borrower, even though the Arev immediately gave the
          money to Shimon.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A case occurred in which a judge gave the borrower's
          property to the lender before the lender claimed from the
          borrower; Rav Chanin brei d'Rav Yeva removed the judge.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Rav Chanin acted properly. He holds that
               one's property is an Arev for him;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven lent to Shimon, and Levi was
               an Arev, Reuven may not collect from Levi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This means, he may not collect from the Arev
               first.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>AN AREV DOES NOT COLLECT FROM ORPHANS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which Levi was an Arev for Shimon.
          Shimon died, and Levi paid the lender before informing
          Shimon's orphans.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> (The orphans now owe Levi.) Paying a
          creditor is a Mitzvah. The orphans are not obligated in
          Mitzvos (until they become adults).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> The orphans do not pay.
          We are concerned for Tzrari (perhaps their father gave
          money to Reuven, in order that Reuven will not ask the
          Arev to pay).
<br>
<br>

sjt:
<font><b>1) WHAT IS AN 'AREV KABLAN'</b></font><b>
<br>OPINIONS:</b> The Gemara (end of 173b) says that according to the Tana Kama of the Mishnah, a lender may approach an Arev Kablan to pay even if the borrower has property and the lender has not yet asked the borrower to pay. Raban Shimon ben Gamliel maintains that the lender must approach the borrower first; he may collect from the Arev (even an Arev Kablan) only when the borrower has no property with which to pay.
</p><p>
The Gemara continues its discussion about an Arev Kablan and lists the different expressions that a guarantor may use to accept upon himself an obligation of Arvus or an obligation of Kablanus.
</p><p>
What determines whether an Arev is an 'Arev Kablan'?
</p><p>
(a) <b>RASHI</b> in Gitin (49b, DH b'Kablan; see also <b>RASHBAM</b> earlier in Bava Basra, beginning of 47a) explains that the word 'Kablan' denotes that the Arev <i>received</i> ('Kibel') money or an object on behalf of the borrower. Since the object passed through his hands, he has accepted a greater obligation towards the lender. <b>TOSFOS</b> there (Gitin 49b, DH b'Kablan) explains that according to Rashi, this is the meaning of 'Kablan' whenever the Gemara discusses the concept.
</p><p>
In the case of a normal loan, it is clear that the Arev can become a Kablan by accepting the money that the lender gives to the borrower. However, the Gemara later (174b) and in Gitin (49b) says that when a person becomes an Arev for the payment of a Kesuvah, he is not obligated to pay even if the husband has no money with which to pay (as per the reason that the Gemara here later gives). If he becomes an Arev <i>Kablan</i> for a woman's Kesuvah, then he <i>does</i> become obligated to pay. How, though, does the Arev Kablan obligate himself in the case of a Kesuvah according to Rashi? In the case of a Kesuvah, the woman has not yet received her Kesuvah, and she gives nothing to the Arev Kablan that would obligate him to pay the Kesuvah when the time comes. How, then, can a person become a Kablan for a Kesuvah?
</p><p>
Rashi explains that one can become a Kablan for a Kesuvah in a case where the husband designates certain Metaltelin items in his possession for the payment of the Kesuvah, and he gives them to his wife to hold until the time comes to collect the Kesuvah. If the wife then hands over those Metaltelin to an Arev in order for him to return them to her husband, then the Arev becomes an Arev Kablan.
</p><p>
In contrast to Rashi's definition of an Arev Kablan, the Gemara here gives different criteria for defining the difference between a Kablan and an Arev. The Gemara says that when a person asks the lender to accept him as a Kablan for the loan, he uses a different wording ('go give him money') than the wording used by an Arev ('lend him money'). Tosfos explains that Rashi understands that a Kablan requires <i>both</i> a different wording <i>and</i> physical acceptance of the money of the loan for the borrower. (See also Insights to Gitin 49:2.)
</p><p>
(b) The <b>RASHBA</b> and <b>RITVA</b> in Gitin explain that a Kablan becomes a Kablan simply because of the wording that he uses when he accepts the Arvus. This follows the simple reading of the Gemara here in Bava Basra. It is not necessary for him to physically accept any money or object. The reason he is called a Kablan is that he has accepted ('Kibel') responsibility to pay back the loan. If he physically accepts the loan itself, then he has a much greater obligation than an Arev Kablan, and the lender may collect <i>only</i> from him and not from the borrower (as the Gemara here says).
</p><p>
The <b>RASHBAM</b> (173b, DH Kablanus) seems to have retracted what he wrote earlier in Bava Basra and sides with these Rishonim.
</p><p>
(c) The <b>TOSFOS HA'ROSH</b> and the <b>RASHBA</b> (in the name of Tosfos) in Gitin compromise and explain that a person normally becomes a Kablan based on the wording that he uses, and not because he physically accepts the loan. However, the wording alone is not enough to make a person a Kablan for a <i>Kesuvah</i> (because he does not cause the wife any loss by accepting responsibility, since she has not handed over any money as a result of his promise to pay back), which is the case discussed in Gitin. Therefore, in order to become an Arev Kablan for a Kesuvah, it is necessary for the wife to receive Metaltelin that were designated for the payment of her Kesuvah and to return them based on the promise of the Arev. Only then does one become an Arev Kablan.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE EXEMPT ORPHANS DUE TO CONCERN FOR TZRARI?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 5a (Reish Lakish):</font></b> If Levi fixed a time to pay his
               debt to Yehudah, and claims that he paid within the
               time, he is not believed. We are happy if people pay
               on time. We do not believe that he paid early!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Abaye and Rava):</font></b> He is believed. Sometimes one gets
               the money and he is eager to pay, lest he lose the
               opportunity!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> In practice, Rav Papa and Rav Huna brei d'Rav
               Yehoshua ruled like Abaye and Rava. Mar bar Rav Ashi
               ruled like Reish Lakish.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The Halachah follows Reish Lakish;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b>We apply the Chazakah even against orphans. (If a man
               died before the time to pay his debt, the lender
               collects from the orphans without swearing.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Even though (normally) one collects from orphans
               only through an oath, here is different, for the
               Chazakah is that one does not pay before the time.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 158a (Mishnah - Beis Hillel):</font></b> If a house fell on
               Reuven and his wife, and Reuven's heirs say that she
               died first (so Reuven inherited all her property),
               and her heirs say that he died first (so they
               inherit her property and her Kesuvah), we leave the
               property in its Chazakah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 158b (R. Elazar):</font></b> Her heirs are Muchzak.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 174a:</font></b> (Rav Papa): If Levi was an Arev for Shimon,
               and Shimon died, and Levi paid the lender before
               informing Shimon's orphans, the orphans now owe
               Levi. Paying a creditor is a Mitzvah. The orphans
               are not obligated in Mitzvos (until they become
               adults).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Huna brei d'Rav Yehoshua):</font></b> The orphans do not
               pay (until they mature). We are concerned for Tzrari
               (perhaps their father gave money to Reuven, in order
               that Reuven will not ask the Arev to pay).
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> They argue in a case when Shimon admitted just
               before he died that he did not pay, or he was
               excommunicated for refusal to pay. (There is no
               concern for Tzrari.)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Gitin 34b (Mishnah):</font></b> A widow collects her Kesuvah
               from orphans' property only through an oath. Judges
               refrained from administering the oath. R. Gamliel
               enacted that she vow like the orphans desire, and
               then she collects.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 35a:</font></b> A widow (who came to collect her Kesuvah) said
               'Rav does not collect a Kesuvah for a widow, lest
               she already received part of it. I swear by Hashem's
               name that I have not benefited from my Kesuvah!'
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Rav Huna:</font></b> Rav admits that if she swears on her own, 
               she receives her Kesuvah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (1:9):</font></b> The Halachah follows Reish
               Lakish, even against orphans. Normally, one does not
               collect from orphans without swearing. This is an
               exception, for one does not pay before the time.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> This is even from minor orphans. Just like one
               does not pay before the time, one does not give
               Tzrari before the time. R. Yonah says that even
               though one does not pay before the time, we are
               concerned for Tzrari before the time. People often
               give a security before the time, sometimes even at
               the time of the loan. This is why he (Rav Huna) did
               not explain that we do not collect from orphans due
               to concern lest the father already paid, rather, due
               to concern for Tzrari, for this applies even within
               the time. I disagree, for it is not common at all to
               give Tzrari before the time. Even Abaye and Rava say
               that one is apt to pay early if he gets the money,
               only due to fear lest he spend the money. He has no
               reason to give one of his articles before the time.
               (Note: Rashi explains that Tzrari is coins. The Rosh
               explains that it is an object. I did not find anyone
               else who says so.) If the creditor will demand
               payment in the time, he will give one of his
               articles then! We are concerned for Tzrari regarding
               orphans after the time. When a creditor demands
               payment in the time, he often grants more time if a
               security is given, for then he is sure he will
               collect. Therefore, one does not collect from
               orphans until they mature, for perhaps they will
               find witnesses that their father gave Tzrari. The
               reason is not concern for payment. This concern
               suffices only to obligate an oath, but not to delay
               payment until they mature, for had he paid, the
               creditor would have returned the document. We are
               not concerned lest witnesses come and say that he
               paid and left the document with the creditor, for
               this is unusual.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> We collect from minors only to
                    save paying Ribis or a widow's food. For them,
                    we are more concerned for Tzrari. Even if
                    testimony was accepted in their father's
                    lifetime, one may not collect from them until
                    they mature.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If one may collect from minor orphans, the
               Gemara should have said 'even though we said that we
               collect from (minor) orphans only to pay a loan
               (from a Nochri) on Ribis (within the time, we
               collect any loan)', for that refers to minors. Why
               did the Gemara say 'even though one collects from
               orphans only through an oath...', which discusses
               adults?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Rosh):</font></b> Had we said 'even though we said
               that we collect from orphans only a loan on Ribis',
               one might have thought that (within the time) one
               collects only through an oath, like the usual law of
               collection from orphans. Therefore, it said 'even
               though one collects from orphans only through an
               oath...' to teach that here he need not swear.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Tosfos 5b DH v'Afilu):</font></b> Only Rav Huna
               holds that one collects within the time from minor
               orphans. The Gemara teaches that all (i.e. even Rav
               Papa) agree that one does not collect from orphans
               without swearing, unless it is within the time. Bava
               Basra 174 did not list collection from minor orphans
               within the time among differences between Rav Papa
               and Rav Huna, for they argue with Reish Lakish.
               Also, the Gemara does not always list all the
               differences.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Regarding a widow, we are concerned for
               Tzrari even within the time! This is why she must
               swear to the orphans (Gitin 34b), even though it is
               not due to be paid in her husband's lifetime!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answers (Rosh):</font></b> Since there is a Tanai Beis Din to
               pay a Kesuvah, (one is zealous to ensure that he
               fulfills it, so) we are concerned. This is why we
               are concerned for Tzrari for food for one's daughter
               after he dies, but not for food that he obligated
               himself to give to step-daughters. The Ritzva says
               that regarding a widow, we are not concerned for
               Tzrari within the time. Rather, when one is about to
               die, it is common to give Tzrari, lest his widow be
               disgraced in Beis Din. This explains the opinion
               (158b) that when we are unsure whether Reuven or his
               wife died first, her heirs are Muchzak (and inherit
               her Kesuvah). A widow collects only through an oath,
               and one does not inherit (rights to collect through)
               an oath! According to the Ritzva, since he did not
               expect to die, there is no concern for Tzrari.
               Therefore, no oath is needed.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 14:1):</font></b> One who collects from
               a minor or adult heir collects only through an oath
               like a mid'Oraisa oath. If the debt was for a time
               and he demanded payment before the time, he collects
               without an oath. After the time, he collects only
               with an oath.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 78:1):</font></b> If a time was fixed for a
               debt, and Reuven demanded payment before the time,
               and Shimon said 'I paid you', he is not believed.
               There is a Chazakah that one does not pay before the
               time. This is even from orphans. If Shimon died
               within the time and left orphans, even minors,
               Reuven collects without an oath.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH umi'Divrei):</font></b> Tosfos (5b DH
                    v'Afilu) says that we discuss collecting only
                    from adult orphans, but not from minor orphans,
                    even if testimony was accepted in their
                    father's lifetime. It seems that R. Yonah
                    agrees. The Rosh says that it is even for
                    minors, for there is no concern for Tzrari. The
                    Magid Mishneh says that the Ramban and Rashba
                    agree, and it seems that the Rambam agrees. The
                    Ran and Sefer ha'Terumos agree. Since so many
                    hold like the Rambam, we rule like them.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MUST MINOR ORPHANS PAY A DEBT THAT WAS NOT DUE YET? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between these answers?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If Shimon admitted, just before he died,
          that he did not pay (we are not concerned for Tzrari. Rav
          Huna brei d'Rav Yehoshua obligates the orphans in this
          case).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Shimon was put in Niduy (excommunication)
          for refusal to pay, and he died in Niduy (we are not
          concerned for Tzrari).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Chachamim of Eretz Yisrael):</font></b> If Shimon died in Niduy,
          the Halachah follows Rav Huna brei d'Rav Yehoshua.
          (Rashbam - the orphans must pay. We do not exempt them
          because they are exempt from Mitzvos; R. Chananel - we
          are concerned for Tzrari. Perhaps Shimon died before
          asking for the Niduy to be lifted.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If an Arev was holding a loan
          document (on which he was an Arev), he cannot collect
          from the borrower's orphans.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the lender signed 'I received the money from
               you', he collects.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We understand according to Rav Huna brei d'Rav
               Yehoshua. The case is, the borrower admits that he
               did not pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> However, according to Rav Papa, the orphans are
               exempt from Mitzvos. They need not pay!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Because the lender signed 'I received the money
          from you', the Arev is now like a creditor with a
          document, so he collects from orphans.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Shimon borrowed from a Nochri, and died. Levi was an
          Arev. Levi paid the lender before he claimed from
          Shimon's orphans.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Mordechai):</font></b> Even Rav Huna brei d'Rav
               Yehoshua is concerned for Tzrari only when the
               lender is a Yisrael;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Nochri would claim from the Arev even if he was
                    paid, so we are not concerned for Tzrari.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rav Ashi):</font></b> Just the contrary! Even Rav
               Papa is concerned for Tzrari when the lender is a
               Nochri!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since Nochrim claim from the Arev first, surely
                    Shimon gave Tzrari <i>to Levi</i> to make him agree
                    to be an Arev!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>AN AREV FOR A KESUVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Similarly, R. Shimon ben Gamliel says, if
          Yehudah was an Arev for a Kesuvah...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Moshe bar Atzri was an Arev for his daughter-in-law's
          Kesuvah. His son, Rav Huna, was a very poor Chacham.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Abaye:</font></b> Why doesn't someone suggest to Rav Huna to
          divorce his wife, she will collect her Kesuvah, and he
          can remarry her!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah):</font></b> He must vow that he will not
          benefit from her!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> He can divorce her outside of Beis Din.
          Perhaps the father will pay without making him vow!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It became known that Rav Huna was a Kohen (who
               cannot marry a divorcee), so the scheme was not
               feasible.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Abaye:</font></b> Poverty clings to the poor (they do not
               easily escape it).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> How could Abaye have suggested such a
          scheme?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Abaye):</font></b> A crafty Rasha is one who counsels (one
               who received a gift on condition that it will pass
               to someone else after him) to sell it, according to
               R. Shimon ben Gamliel (that the sale works).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> This was different, for the father's money
          would go to his son. Also, the son was a Chacham.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Halachah is that an Arev for a Kesuvah is
          not obligated (this will be explained later)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The father was a Kablan.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that a Kablan for a
          Kesuvah is obligated;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Like the opinion that a Kablan for a Kesuvah is
               not obligated unless the husband had property, how
               can we answer?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, Rav Huna had property (when his
          father became a Kablan), and later it was flooded.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> A father obligates himself for his son (even
          if the son has no property).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	All agree that an Arev for a Kesuvah is not obligated;
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	All agree that a Kablan for a loan is obligated;
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	They argue about a Kablan for a Kesuvah and an Arev for
          a loan. One opinion says that the Kablan (Arev) is
          obligated only if the husband (borrower) has property;
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	The other opinion says that in either case, he is
          obligated.
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	The Halachah is, an Arev is obligated whether or not
          the borrower has property, except for an Arev for a
          Kesuvah, who is never obligated;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why is he not obligated for a Kesuvah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He gets no benefit. He thinks 'I am doing
               a Mitzvah (to help them get married). She is not
               losing anything (she prefers to be married, even if
               there is no guarantor for her Kesuvah).' The Arev
               has no real intent to pay.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DO WE BELIEVE A SHECHIV MERA?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If a Shechiv Mera (one who fears lest he
          die from his illness) was Makdish all his property, and
          later said '100 Zuz in my possession really belongs to
          Ploni', he is believed. There is a Chazakah that people
          do not scheme to cheat Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rav Nachman):</font></b> Do people scheme to cheat
          their children?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav and Shmuel):</font></b> If a Shechiv Mera said '100 Zuz
               in my possession really belongs to Ploni', we give
               to Ploni only if he said 'give it to Ploni.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (This is not a scheme to cheat his children.
               Rather,) one does not want people to think that his
               children are wealthy, so we suspect that he is
               lying;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Likewise, when he was Makdish, we should be
               concerned lest he did not have Ploni's money, just
               he did not want people to think that he himself is
               wealthy!
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE BELIEVE A SHECHIV MERA? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Huna discusses when Ploni has a document
          (therefore, we believe that he is owed).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference:</font></b> Rav and Shmuel discuss when Ploni does not
          have a document.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> When he says 'give', why do we give? This is
          (like a creditor trying to collect from buyers) a loan
          without a document!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav and Shmuel):</font></b> A loan without a document is
               not collected from heirs or buyers.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> Rather, also Rav and Shmuel discuss when
          Ploni has a document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Huna discusses a validated document. Rav and
               Shmuel discuss a document that is not validated;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he says 'give', this is like validating the
                    document. If he did not say 'give', he did not
                    validate the document.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If a Shechiv Mera said '100 Zuz in my
          possession really belongs to Ploni', and his orphans say
          'we paid Ploni', they are believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give 100 Zuz to Ploni', and his
               orphans say 'we paid Ploni', they are not believed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Just the contrary! When he says 'give', the
          matter is clear, so it is more likely that they paid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When he says '100 Zuz in my possession belongs to
               Ploni', the matter is not clear, so it is less
               likely that they paid!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, if a Shechiv Mera said '100 Zuz in
          my possession belongs to Ploni', and his orphans say
          'later, he told us that he paid Ploni', they are
          believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Later, he remembered that he had paid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he said 'give 100 Zuz to Ploni', and his
               orphans say 'later, he told us that he paid Ploni',
               they are not believed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had he paid, he would not have said 'give' (which
                    shows certainty that he owes).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If a Shechiv Mera admitted (Rashbam - to a
          creditor who claimed from him), what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Must he say 'you are witnesses (that I really owe
               him)'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Must he say 'you may write a document'?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Does one jest at the time of death (and make a
               false admission), or not?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> One does not jest at the time of death.
          What a Shechiv Mera says takes effect like a document
          that was handed over.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY OF AN AREV</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven lent to Shimon and wrote a
          document, he can collect even from Meshubadim (property
          that the borrower sold after he borrowed);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Milveh Al Peh (a loan for which no document was
               written) is collected only from Bnei Chorin
               (property that the borrower still owns).
<br>
<br>

sjt:
<font><b>1) WHEN THE 'SHECHIV MERA' REMEMBERS THAT HE PAID</b></font><b>
<br>OPINIONS:</b> Rava gives guidelines for the law in the case of a Shechiv Mera who reveals that he owes money to certain people, and for the different claims his heirs might present to those people. If the Shechiv Mera tells his heirs that he owes someone a Maneh (100 Zuz), the heirs are believed to say that 'he told us afterward that he had already paid that debt.' If the Shechiv Mera instructs his heirs to 'give' a Maneh to someone, his heirs are not believed to say that he already paid back that debt, because the word 'give' is a strong terminology which the Shechiv Mera would use only if he had not yet paid his creditor.
</p><p>
Earlier in the Gemara (174b), Rav and Shmuel state that when someone says merely that he owes a Maneh to someone, after he dies the heirs do not have to pay. This is because a dying man sometimes will pretend that he owes someone money so that people will not give an Ayin ha'Ra to his heirs, who are about to inherit his fortune. If he says 'give' a Maneh to someone (to whom he owes money), the heirs must do so. This implies that Rav and Shmuel disagree with Rava, because Rava implies that the heirs have no obligation to give the Maneh <i>only</i> when they claim that the Shechiv Mera later recalled that he had paid the creditor. Does Rava indeed argue with Rav and Shmuel?
</p><p>
(a) The <b>RIF</b> explains that Rava is discussing a different case than that of Rav and Shmuel. In Rava's case, the Shechiv Mera says in a manner of admission that he owes money. In Rav and Shmuel's case, the Shechiv Mera does not speak in a manner of admission. What is the meaning of a 'manner of admission'?
</p><p>
1. The <b>NIMUKEI YOSEF</b> explains that Rava is discussing a case in which the Shechiv Mera said, 'I admit that I owe a certain person money.' This implies that his intent is to make an honest confession, and not an attempt to protect his children from an Ayin ha'Ra. Rav and Shmuel are discussing a case in which the Shechiv Mera merely exclaims that he owes someone a Maneh.
</p><p>
The Nimukei Yosef adds that there is a precedent that such a subtle change in wording and attitude affects the Halachah. The Gemara in Sanhedrin (30a) states that when children saw their father hide some money, and he told them that 'the money belongs to someone else' or that 'it is money of Ma'aser Sheni,' they may determine the real status of the money from his attitude. If he is merely being careful to protect the money, he indeed might be watching it for someone else, or guarding money of Ma'aser Sheni. If he hides it in a devious-looking manner, they may assume that the money belongs to him, and they inherit it after his death.
</p><p>
2. The <b>ROSH</b> understands the Rif differently. He understands that Rava is discussing a case in which the Shechiv Mera was confronted by someone who said that the Shechiv Mera owed him money. When he admits that he indeed owes money to the claimant, his admission clearly has nothing to do with any attempt to prevent his children from an Ayin ha'Ra. In contrast, Rav and Shmuel are discussing a case in which he volunteered this information without anyone claiming any money from him. Such an admission is likely motivated by his desire to protect his children from an Ayin ha'Ra.
</p><p>
(b) The <b>BA'AL HA'ME'OR</b> explains that Rava indeed argues with Rav and Shmuel. He cites many proofs that the Halachah does not follow the view of Rav and Shmuel, and therefore Rava's argument with them is justified. (The <b>RAMBAN</b> in <b>MILCHAMOS</b> refutes the proofs of the Ba'al ha'Me'or at length.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A DOCUMENT THAT WAS VALIDATED ONLY LATER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 154a:</font></b> R. Meir and Chachamim argue about whether a
               lender must validate a document (authenticate the
               signatures) if the borrower admits that he
               authorized it (but claims that he paid it). R. Meir
               says that he need not validate it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that he must validate it. (If not, the
               borrower is believed to say that he paid, Migo
               (since) he could claim that it was forged.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 174b (Rav Huna):</font></b> If a Shechiv Mera was Makdish all
               his property, and later said '100 Zuz in my
               possession really belongs to Ploni', he is believed.
               There is a Chazakah that people do not scheme to
               cheat Hekdesh.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection (Rav Nachman):</font></b> Do people scheme to cheat
               their children?! Rav and Shmuel taught that if a
               Shechiv Mera said '100 Zuz in my possession really
               belongs to Ploni', we give to Ploni only if he said
               'give it to Ploni.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (This is not a scheme to cheat his children.
                    Rather,) one does not want people to think that
                    his children are wealthy, so we suspect that he
                    is lying. Likewise, perhaps the one who was
                    Makdish did not have Ploni's money, but he did
                    not want people to think that he himself is
                    wealthy!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rav Huna discusses when Ploni has a
               document.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> This implies that Rav and Shmuel discuss
               when Ploni does not have a document. If so, when he
               says 'give', why do we give? This is (like a
               creditor trying to collect from buyers) a loan
               without a document. Rav and Shmuel taught that a
               loan without a document is not collected from heirs
               or buyers!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> Rather, Rav Huna discusses a
               validated document. Rav and Shmuel discuss a
               document that is not validated. If he says 'give',
               this is like validating the document. If he did not
               say 'give', he did not validate it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Bava Kama 106a (Rav):</font></b> If Reuven denied owing money
               to Shimon and swore, and later, witnesses said that
               he owes Shimon, he is exempt. 'The owner will take,
               and he (the defendant) will not pay' - once the
               owner received (heard) an oath, the defendant need
               not pay.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rami bar Chama (to Rav Nachman):</font></b> You do not hold
               like Rav. What forces you to (explain the Mishnah in
               such a way to) answer for him?
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Nachman:</font></b> I just explain how Rav must learn the
               Mishnah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Shevuos 22a):</font></b> When the Gemara says that one
               cannot collect with a document, it is Batel. The
               borrower swears Heses that he does not owe.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ran, Dibur Rishon):</font></b> The document is
                    not Batel. We do not tear it. It is improper to
                    tell the borrower to swear as long as the
                    lender has the document. If the lender wants
                    the borrower to swear, he must return the
                    document first.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef (Bava Basra 82a DH Shechiv):</font></b> In
                    the case of the Shechiv Mera who was Makdish
                    his property and later said that 100 belongs to
                    Ploni, the Ramban says that he was healthy when
                    he was Makdish. Now he is a Shechiv Mera, and
                    he says that 100 belongs to Ploni. We infer
                    that we collect from orphans only with a
                    validated document. If the borrower is here and
                    he does not claim that the document was forged,
                    we do not claim for him. If he claimed that the
                    document was surely forged, and afterwards the
                    lender validated it, the borrowed is not
                    believed afterwards to bring a proof that he
                    paid. If one says 'it is a forgery. I did not
                    borrow', it is as if he said that he did not
                    pay. His admission is like 100 witnesses.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nimukei Yosef (Bava Basra 82b DH Omar):</font></b> Ploni
                    collects only if the Makdish validated the
                    document. Meforshim learn from here that even
                    from heirs, one does not collect until he
                    validates the document. This is unlike the Ri,
                    who requires validation only when the defendant
                    makes a Vadai claim, but not against heirs. The
                    Ri is wrong.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 14:5):</font></b> If Reuven brought
               against David a loan document that he cannot
               validate, and David says 'yes, I wrote this
               document. However, I paid it', he is believed to
               swear Heses and exempt himself. If afterwards the
               lender validated it in Beis Din, it is like any
               document.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 82:1):</font></b> If Reuven brought against
               David a loan document that he cannot find witnesses
               to validate it, and David admits that he wrote it,
               but says that he paid it, he is believed. If
               afterwards the lender validated it in Beis Din, it
               is like any document and he collects with it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> He can use the document to collect
                    from one who bought in the interim. The buyers
                    caused their own loss. They should not have
                    bought, lest he validate the document. Now that
                    he validated it, this shows retroactively that
                    it was valid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (DH Kosav):</font></b> Why should one think that he
                    cannot collect Meshubadim? The Chidush is that
                    he collects even from property sold after the
                    document was seen in Beis Din and the lender
                    was unable to validate it. One might have
                    thought that in the interim, the document was
                    like a shard.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (DH Aval):</font></b> Do not say that after the
                    borrower swears, the lender collects. Beis Din
                    would not impose an oath if it is possible that
                    afterwards the lender will validate the
                    document, and the oath was Levatalah. The
                    Rambam himself (Hilchos Malveh 14:15) says that
                    if the borrower says that he paid, and the
                    lender asks him to answer, he says 'you still
                    have a document!' He does not swear until we
                    disqualify the document (CM 75:24). Only a fool
                    would swear and leave the document with the
                    lender! Letter of the law he need not swear as
                    long as the lender has a document against him,
                    like the Ran (above, also in Beis Yosef 58:3 DH
                    v'R. Chananel) says. Rather, we say that it is
                    like any document only before the borrower
                    swore. Once he swears, the document is Batel.
                    He is believed through his oath that it was
                    paid. However, if the borrower claimed that if
                    was forged, surely the lender need not return
                    it after the borrower swears.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 4):</font></b> Even after the borrowed
                    swears, the lender need not return the
                    document. The Rambam says 'he is believed to
                    swear Heses and exempt himself. If afterwards
                    the lender validated it in Beis Din, it is like
                    any document. Also Sefer ha'Terumos says so. If
                    the borrower says 'I will not swear until you
                    return the document', we do not heed him. The
                    lender can say 'swear, for perhaps I cannot
                    validate it. I will keep the document, for
                    perhaps I can validate it.' The oath was not
                    Levatalah, for it helps if the lender cannot
                    validate it. The Bach's proof from the Rambam
                    (14:15) and CM (75:24) is invalid. There, he
                    claimed without a document, and the borrower
                    said 'I know that you have a validated document
                    against me. Why should I swear Levatalah?!'
                    Here is more like 75:25. When the lender has
                    witnesses, he can make the borrower swear
                    immediately, for perhaps he cannot bring the
                    witnesses now. Also here, perhaps he will be
                    unable to validate the document. There is no
                    proof from the Ran, for the Ran discusses one
                    who wants to  keep the document in order that
                    he can seize even in front of witnesses and
                    keep the property. We should not force the
                    borrower to swear and let the lender keep this
                    ability. The borrower can say 'just like you
                    are Muchzak in your document, I am Muchzak in
                    my Shevu'ah; I will not swear until you return
                    my document, so you will not be able to seize.
                    Here, if he validates the document he will be
                    able to collect without seizing. Therefore, the
                    borrower must swear even though the lender
                    keeps the document.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz (75:25):</font></b> If the borrower refuses to swear
                    until the lender tears the document, the lender
                    can say 'now I do not have witnesses. Perhaps
                    later I will find witnesses to validate the
                    document!' What can the lender do now? This is
                    unlike a lender and borrower who argue about
                    the value of a security. There, it helps for
                    the lender to swear first (to avoid a false
                    oath). Here there is no solution. The Ran
                    discusses a document with which one may not
                    collect.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Gra (4):</font></b> The lender collects afterwards whether
                    the borrower swore Heses for total denial, or
                    mid'Oraisa for partial admission. (The Halachah
                    follows Rav Nachman in monetary laws, and) Rav
                    Nachman disagrees with Rav (who says that a
                    Shevu'ah permanently exempts).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MUST A LENDER VALIDATE A DOCUMENT THAT THE BORROWER ADMITS TO? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven presents a document (without
               signatures) in Shimon's handwriting saying that
               Shimon owes him, he collects from Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If an Arev accepted Arvus in a document underneath the
          signatures, the lender can collect from Bnei Chorin (of
          the Arev).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A case occurred in which R. Yishmael said that he
          collects from Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Ben Nanas:</font></b> He does not collect at all!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	R. Yishmael:</font></b> Why not?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Ben Nanas:</font></b> If Reuven saw Shimon (the lender) choking
          the borrower, and said 'leave him alone, and I will give
          to you', Reuven is exempt, for Shimon did not lend due to
          Reuven;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An Arev is liable if he said 'lend to him, and I
               will give to you', for the loan was given due to the
               Arev.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	R. Yishmael:</font></b> To become a Chacham, one should study
          monetary laws. It is the greatest field in Torah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To learn monetary laws, one should study under
               Ben Nanas.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT CREATES A LIEN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara - Ula):</font></b> Mid'Oraisa, whether or not a document
          was written for a loan, the lender may collect from
          Meshubadim (property that the borrower sold after he
          borrowed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because Shibud (the lien on a borrower's
               property to pay the loan) is mid'Oraisa. (A sale
               does not uproot the lien.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim enacted that one may not collect a
               Milveh Al Peh from Meshubadim to protect buyers from
               losing.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If so, they should have enacted also that one
          may not collect a loan with a document from Meshubadim,
          to protect buyers!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> There (when a document was signed, the matter
          becomes known. If a buyer asks, he will find out about
          the loan. If he did not do so), he caused his own loss.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah):</font></b> Mid'Oraisa, whether or not a document was
          written, the lender does not collect from Meshubadim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shibud is not Mid'Oraisa. Chachamim enacted that
               a loan document is collected from Meshubadim due to
               Ne'ilas Delet (lest people be dissuaded from
               lending).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, they should have enacted also that a
          Milveh Al Peh is collected from Meshubadim!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> There, the loan does not become known. (Buyers
          have no way to find out about the loan, and they will
          lose.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Rabah taught that if brothers collected
          land for a debt due to their father, the firstborn gets a
          double share in this. (This is because the land was
          already Meshubad in the father's lifetime. It is as if
          the father owned it.) If they collected money, he gets no
          extra share.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We must switch the opinions of Ula
               and Rabah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Ula taught that mid'Oraisa, a creditor
               collects Ziburis (low quality land). (Rashbam - he
               collects from the borrower mid'Oraisa, i.e. there is
               a lien on his land. Tosfos - all agree that
               mid'Oraisa, a lender collects from the borrower's
               property. Perhaps the Gemara understands that Ula
               says that mid'Oraisa he collects Ziburis from
               buyers.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, Rabah's law (about the firstborn) is
          according to Chachamim of Eretz Yisrael (like it says in
          Bava Kama 43a). He himself disagrees.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav and Shmuel):</font></b> A Milveh Al Peh is not collected from
          heirs or buyers.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This is because Shibud is not mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Yochanan and Reish Lakish):</font></b> A Milveh Al Peh is
          collected from heirs and buyers.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This is because Shibud is mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (against Rav and Shmuel - Beraisa):</font></b> If Reuven
          was digging a pit in the Reshus ha'Rabim and an animal
          fell on him and killed him, the owner is exempt. Further,
          if the animal died, Reuven's heirs compensate its owner.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (R. Ila'a citing Rav):</font></b> The case is, Reuven died
          after Beis Din obligated him to pay. (A ruling of Beis
          Din is like a loan document, therefore the heirs must
          pay.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that the animal killed
          Reuven!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Ada bar Ahavah):</font></b> The case is, it made
          Reuven a Treifah.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Nachman taught that the animal buried
          Reuven in the pit (i.e. he never went to Beis Din)!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, judges were sitting by the pit and
          they obligated Reuven before he died.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The Halachah is, a Milveh Al Peh is
          collected from heirs, but not from buyers.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is collected from heirs, due to Ne'ilas Delet;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is not collected from buyers, because it does
               not become known.
<br>

<p>

sjt:
</p><p>
<font><b>2) AGADAH: ONE WHO SEEKS TO BECOME WISE SHOULD LEARN MONETARY LAW</b></font><b>
<br>QUESTION:</b> The Mishnayos of Bava Basra conclude with Rebbi Yishmael's statement that one who seeks to become wise should learn 'Dinei Mamonos,' monetary law, since there is no greater area of study ('Miktzo'a ba'Torah') than monetary law, and the laws of Dinei Mamonos are like an ever-flowing stream. Rebbi Yishmael adds that one who wants to learn Dinei Mamonos (in his day) should serve Shimon ben Nanas.
</p><p>
What is unique about the study of Dinei Mamonos that it makes one wise?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TIFERES YISRAEL</b> explains this Mishnah at length, based on two main points. His first point is that the Halachos of how to judge monetary cases have very little explicit mention in the Torah. The foundations for judging monetary cases are laid out in the Gemara. Since, in monetary cases, the possible claims are innumerable, a judge must be proficient at finding precedents in the Gemara for the cases that come before him. His second point is that in contrast to cases of 'Isur v'Heter' (matters of prohibition and permissibility) where a judge who is in doubt can simply rule stringently, a judge who has a doubt about a monetary law cannot simply rule stringently, because a stringency for one litigant is a leniency for the other. Accordingly, one who wants to judge Dinei Mamonos must examine carefully all of the details of all of the laws, and doing so will make him wise.
</p><p>
(b) The <b>IYUN YAKOV</b> explains that the wisdom to which Rebbi Yishmael here refers is the shrewdness that a Dayan must have in order to discern when witnesses, plaintiffs, or defendants are not telling the truth. A Dayan should be crafty enough to employ whatever type of method necessary to determine the facts of the case. A story is told about a Dayan who sensed, but could not prove, that a person who seemed to have a valid claim that he was the owner of a certain coin was in fact not its owner and was lying. The Dayan privately instructed his attendant to whisper to someone within earshot of the suspect that the coin in question had a dent on its the front along with some discoloration (which the true owner would have known), and if the claimant is the true owner he certainly would know this detail. When the claimant came back into court, he immediately stated that he could prove that the coin was his, and he gave the details which he overheard the attendant whisper. The Dayan promptly said, 'The coin clearly is not yours, as it has none of those characteristics,' and he awarded the coin to the other party.
</p><p>
(c) The <b>YOSEF DA'AS</b> comments that perhaps the Mishnah means that since most laws in the Torah are monetary laws (as Hillel says in Shabbos 31a, that the 'Klal Gadol ba'Torah' is 'that which you do not like, do not do to your friend'), one will become wise in Torah by focusing on Dinei Mamonos. He adds that an allusion to this may be found in the Gematriya of 'Miktzo'a ba'Torah.' The word 'Miktzo'a' equals 306, just more than half of the Gematriya of 'Torah,' which equals 611. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A DOCUMENT IN THE BORROWER'S HANDWRITING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven presents a document in Shimon's
          handwriting saying that Shimon owes him, he collects from
          Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rabah bar Noson):</font></b> If Beis Din validated such
          a document, what is the law?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> (It does not become like a proper
          document. Still) he only collects from Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rami bar Chama - Mishnah):</font></b> There are three
          kinds of Gitin that are Pasul (mid'Rabanan). If a woman
          remarried relying on such a Get, the children are not
          Mamzerim:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The husband wrote it in his own handwriting,
               witnesses did not sign;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Witnesses signed, but it has no date;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It has a date, but only one witness signed.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Eliezer says, even if no witnesses signed, if
               he gave it to her in front of witnesses, it is
               Kosher, and (Rashbam - such a loan document; one
               version in Rashi - the Kesuvah) can be collected
               from Meshubadim (sold property).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1 (our text, Rashbam) Answer:</font></b> That case is
          different, for from the time he wrote the document
          (intending to give it in front of witnesses), he
          obligated himself (therefore, it is like a proper loan
          document).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 (Rashi) Answer:</font></b> That case is different, for
          from the time (i.e. of Nisu'in) that he became
          responsible to pay her Kesuvah (if she will be widowed or
          divorced) he obligated himself (and this is known to
          all).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TESTIMONY ON ARVUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an Arev accepted Arvus in a document
          underneath the signatures...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> If he signed before the signatures, the lender
          collects even from Meshubadim. If he signed after the
          signatures, he collects from Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction:</font></b> A different time, Rav taught that even
          if he signed before the signatures, the lender collects
          only from Bnei Chorin!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> If he wrote 'Ploni is an Arev', this is a new
          matter. The signatures do not refer to it. It is as if he
          signed after the signatures (he collects only from Bnei
          Chorin);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote '<i>and</i> Ploni is an Arev', this is
               part of the document. The signatures testify also
               about it (so he collects even from Meshubadim).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> In either case ('Ploni is an Arev' or
          'And Ploni'), he only collects from Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does he really say that if he wrote 'And
          Ploni is an Arev', he only collects from Bnei Chorin?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a personal note ('give my
               regards...') was appended to a Get and witnesses
               signed underneath it, the Get is Pasul. We are
               concerned lest they signed only on the greeting, and
               not on the Get.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Amah citing R. Yochanan):</font></b> If it says 'give my
               regards', it is Pasul. If it says '<i>and</i> give...' it
               is Kosher.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> When R. Yochanan said 'in either case', he
          meant that whether he signed before or after the
          signatures, he only collects from Bnei Chorin;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, he wrote 'Ploni is an Arev' (without 
               'and').
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he agrees with Rav!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, it should say 'and also R. Yochanan
          said...'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A case occurred in which R. Yishmael said
          that he collects from Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> Even though R. Yishmael praised
          Ben Nanas, the Halachah follows R. Yishmael.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Yishmael say in a case of
          choking? (Is the Arev obligated?)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yakov said that R. Yishmael argues even in a
          case of choking.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Does the Halachah follow R. Yishmael there?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Ravin said that R. Yishmael argues even in a
          case of choking, and the Halachah follows him even there.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> In a case of choking, if the Arev made a
          Kinyan to obligate himself, he is obligated.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Inference:</font></b> If it was not a case of choking, no Kinyan
          is required!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This argues with Rav Nachman.
<br>
<br>

sjt:
<font><b>1) UNDERSTANDING THE POSITION OF RAV PAPA</b></font><b>
<br>QUESTION:</b> The Gemara quotes Rav Papa who says that one who wants to collect a loan which was not written in a Shtar may collect from the heirs of the borrower, but he may not seize property from Lekuchos, people who bought property from the borrower after the loan was taken. Rav Papa explains that the lender may collect from the heirs in order to encourage lenders from lending money ('she'Lo Tin'ol Deles' -- 'so that the door not be shut in the face of borrowers'). However, the lender may not collect from Lekuchos, because a verbal loan (one not written in a Shtar) does not publicize the loan and thus the Lekuchos had no way of knowing that the property they bought was collateralized to a loan.
</p><p>
The Gemara in a number of places records a dispute about 'Shibuda d'Oraisa.' Is every lien binding mid'Oraisa? The opinion that maintains that every lien is mid'Oraisa would also maintain that even when one lends money without a Shtar, he should be entitled to collect his money from either the borrower or from his heirs. That opinion does not need the reasoning of 'she'Lo Tin'ol Deles.' Accordingly, Rav Papa, who says that the only reason why the lender may collect from the borrower's heirs is 'she'Lo Tin'ol Deles,' apparently maintains that a Shibud is not d'Oraisa. However, in Kidushin (13b) Rav Papa says the same statement he says here about collecting from heirs, but he says that the reason why one may collect from heirs is that 'Shibuda d'Oraisa'! How are the words of Rav Papa to be reconciled?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> says in the name of others that the correct text in the Gemara in Kidushin is 'Rav Papi,' not 'Rav Papa.'
</p><p>
(b) The Ritva quotes <b>RABEINU TAM</b> who explains that there are two different versions of what Rav Papa said, similar to the way a Gemara often quotes an alternate version with the words, 'Ika d'Amri.' (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHIBUD MID'ORAISA</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 175a (Mishnah):</font></b> If Reuven lent Shimon and wrote a
               document, he can collect even from Meshubadim. A
               Milveh Al Peh (for which no document was written) is
               collected only from Bnei Chorin (property that the
               borrower still owns).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 175b (Ula):</font></b> Mid'Oraisa, whether or not a document
               was written for a loan, the lender may collect from
               Meshubadim (permit that the borrower sold after he
               borrowed).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is because Shibud (the lien on a borrower's
               property to pay the loan) is mid'Oraisa. (A sale
               does not uproot the lien.) Chachamim enacted that
               one may not collect a Milveh Al Peh from Meshubadim
               to protect buyers from losing.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rabah):</font></b> Mid'Oraisa, whether or not a document was
               written, the lender does not collect from
               Meshubadim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Shibud is not Mid'Oraisa. Chachamim enacted that a
               loan document is collected from Meshubadim due to
               Ne'ilas Delet (lest people be dissuaded from
               lending).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'>(Rav and Shmuel):</font></b> A Milveh Al Peh is not collected
               from heirs or buyers.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'>(R. Yochanan and Reish Lakish):</font></b> It is collected from
               heirs and buyers.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> They hold that Shibud is mid'Oraisa. Rav and Shmuel
               disagree.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> The Halachah is, a Milveh Al Peh is
               collected from heirs, due to Ne'ilas Delet. It is
               not collected from buyers, because it does not
               become known.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Kidushin 13b (Rav Papa):</font></b> The Halachah is, a Milveh
               Al Peh can be collected from heirs, because Shibud
               is mid'Oraisa. It can not be collected from
               Meshubadim (property he sold after he borrowed),
               since buyers were unaware.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kesuvos 85a:</font></b> A man had deposited documents with a
               woman to whom he owed money. After his death, his
               heirs requested the documents. She said that she
               seized them when he was alive, to be collateral for
               my debt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Nachman:</font></b> If you have no witnesses that he
                    asked for his documents, and you refused to
                    return them, this is like seizure after death.
                    It doesn't help.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 92a (Rami bar Chama):</font></b> Reuven sold a field to Shimon
               with Achrayus, and Shimon wrote a document saying
               that he owes the money. Reuven died, and Reuven's
               creditor took the field from Shimon. Shimon
               persuaded him to take the money owed in place of the
               field.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> Reuven's children can say 'our father left
               Metaltelim with you (a debt), and a creditor cannot
               take Metaltelim of orphans.' (You did not pay our
               debt, therefore you still owe to us. Also, you
               cannot collect the Achrayus from us.)
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Basra 82b and 10:49):</font></b> The
               Halachah is that Shibud mid'Oraisa. Rav Papa, who is
               Basra, says so in Kidushin. Here, Rav Papa taught
               that a Milveh Al Peh is collected from heirs due to
               Ne'ilas Delet, but not from buyers, for it does not
               become known. He does not contradict himself. He did
               not say that we collect from heirs due to Ne'ilas
               Delet to teach that it is only an enactment. Rather,
               he explains why Chachamim left the mid'Oraisa law in
               effect, and did not enact to protect buyers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Kesuvos 42b):</font></b> Nowadays a creditor has a lien on
               Metaltelim, so he collects from orphans' Metaltelim
               whether or not he seized them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 11:4):</font></b> A Milveh Al Peh can be
               collected from heirs, but not from buyers. Since
               there is no publicity, one may not be Toref (take
               from buyers). A loan document can be collected from
               buyers, for it has publicity. The buyer caused his
               own loss by not asking until he found out that the
               property is Meshubad. Mid'Oraisa, all the borrower's
               property is Meshubad to the lender.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Kesuvos 9:13,14):</font></b> Rav Papa says that paying
               creditors is a Mitzvah, and therefore minors are
               exempt. This implies that we force adults, i.e. when
               they inherited land. If they inherited Metaltelim,
               it is a Mitzvah but we do not force them. Rashi says
               that we do not force people to do Mitzvos
               mid'Rabanan. This is wrong. Rather, Beis Din does
               not force for Mitzvos, such as Kivud Av, for which
               the reward is explicit in the Torah. Latter Rabanan
               enacted that a creditor collects Metaltelim (of
               orphans). Creditors rely on Metaltelim like on land,
               so we force even if they inherited Metaltelim. This
               is the practice.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Kesuvos 50a DH Mitzvah):</font></b> It is a Mitzvah
                    for orphans to pay their father's debt due to
                    Kivud Av. We do not force them, because it is
                    not an explicit Mitzvah like Sukah or Lulav. It
                    is mid'Rabanan.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 107:1):</font></b> It is a Mitzvah for heirs
               to pay their father's debt. We force them, just like
               we would force their father. This is when they
               inherited land. If they inherited only Metaltelim,
               we do not force them to pay the debt from the
               Metaltelim, but it is a Mitzvah for them to do so.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (1):</font></b> When they inherited land, the Mitzvah
                    is not to honor their father. Rather, they must
                    pay like their father needed to, for Shibud is
                    mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tur:</font></b> Mid'Oraisa, Metaltelim of orphans are not
                    Meshubad to a lender, even if they are
                    deposited with the lender or others.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chidushei Hagahos (1):</font></b> This refers to
                    Metaltelim that the father deposited with the
                    lender, and in his lifetime, the lender did not
                    intend to be Tofes (seize them for collection).
                    We learn from the deposited documents (Kesuvos
                    85a) and the one who owed for a field bought
                    with Achrayus (92a). They could not keep them,
                    for they did not intend for Tefisah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> This is letter of the law.
               Ge'onim enacted that a lender collects from
               inherited Metaltelim. Therefore, nowadays we force
               them to pay his debt, even a Milveh Al Peh, even if
               the father acquired the Metaltelim after he
               borrowed, and he did not write 'what I will acquire'
               (will be Meshubad). This is because an heir is in
               place of his father. They must also pay his debt
               from a loan that others owed to him, whether they
               collected land or money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> They must pay even though there are
                    two weaknesses, i.e. the debt is Metaltelim,
                    and it was not Muchzak with the father when he
                    died.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (7):</font></b> Even though a debt is considered Ra'uy
                    (not Muchzak) regarding a Bechor (he does get a
                    double portion from it) and a husband, and a
                    creditor does not collect from Ra'uy, he
                    collects from a debt.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (3):</font></b> Tosfos (Bechoros 52a DH b'Ra'uy) and
                    the Rosh (Kesuvos 8:13) say that the creditor's
                    creditor can collect from inherited Metaltelim,
                    through Shibud d'R. Noson. The Ra'avad says
                    that we do not apply two stringencies; perhaps
                    this if for a Yavam, but not for a creditor.
                    Rashi says that we do not apply two
                    stringencies for a Kesuvah, which is
                    mid'Rabanan. He could agree about a creditor.
                    The Ba'al ha'Itur and Ramban say so about a
                    creditor.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If they inherited land and
               Metaltelim, and the document does not specify that
               he will collect Metaltelim in his lifetime of after
               death, and the lender wants Metaltelim, the heirs
               can choose to pay land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (6):</font></b> This is because letter of the law, the
                    lender does not collect at all.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (4):</font></b> The Bach (105:4 DH u'Mah) says that
                    seizure of Metaltelim helps if the orphans
                    wanted to pay land. This is wrong.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If they did not inherit
               anything from their father, there is not even a
               Mitzvah to pay his debt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> If one inherited a small amount, he need pay
               only what he inherited.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A LOAN DOCUMENT COLLECT BEFORE A MILVEH AL PEH? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> An Arev of Beis Din does not need
               a Kinyan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> A regular Arev needs a Kinyan!
<br> <b>    <b><font color='darkgreen'>(r)</font></b></b>  	The Halachah is, an Arev at the time of the loan does
          not need a Kinyan. An Arev after the money was given
          needs a Kinyan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An Arev of Beis Din does not need a Kinyan. With
               the benefit that he is trusted, he decides
               absolutely to obligate himself.
<br>

sjt:
</p><p>
<font><b>2) WHAT IS AN 'AREV D'BEIS DIN'?</b></font><b>
<br>OPINIONS:</b> Maseches Bava Basra concludes with a discussion of which type of Arev (guarantor) needs a Kinyan. The Gemara states that an 'Arev d'Beis Din' does not need a Kinyan, since he has absolute intention to make himself an Arev as a result of the Hana'ah (benefit) that he receives from the fact that people look upon him as a trustworthy person.
</p><p>
What is the exact case of an 'Arev d'Beis Din,' and who exactly looks upon him as a trustworthy person?
</p><p>
(a) The <b>RASHBAM</b> (DH Arev d'Beis Din) explains that an 'Arev d'Beis Din' is merely someone who co-signs a loan in front of Beis Din. Since the Beis Din accepts him as a co-signer, Beis Din gives the impression that he is a trustworthy person. The Rashbam apparently understands that the case of the 'Arev d'Beis Din' is an ordinary loan.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Malveh v'Loveh 25:2) writes that the case involves a person who actually co-signs <i>for the Beis Din.</i> The Beis Din is about to begin the process of forcing a borrower to pay, and this person tells the Beis Din that he will sign as a guarantor for the Beis Din that the lender will receive his money in due time. The fact that the Beis Din accepts his guarantee shows that the Beis Din trusts him, and as a result of that benefit the guarantor does not need a Kinyan.
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(It is important to note that the fact that the guarantor receives benefit is not a pre-condition for his status as an Arev, but rather it enables Beis Din to assume that the guarantor committed himself fully under conditions which normally would not elicit a total commitment to pay back the loan. This is despite the fact that the Gemara in Kidushin (7a) says that if a woman tells a man to give someone else a Maneh and she will thereby become betrothed to him, the Kidushin is valid because of the 'law of Arev.' See the <b>PNEI YEHOSHUA</b> to Kidushin 7a, and the <b>TZITZ ELIEZER</b> 5:25, ch. 30, for more on this subject.) (Y. Montrose)
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