OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
1) MUST A LENDER VALIDATE A DOCUMENT THAT THE BORROWER ADMITS TO?
1. 154a: 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;
2. 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.)
3. 169b (Beraisa #1 - Rebbi): If Reuven says that he
has a document and a Chazakah for his land, he uses
the document to prove his claim;
4. R. Shimon ben Gamliel says, he brings witnesses of
5. (R. Avina): 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.
6. Question (Beraisa #2 - Rebbi): If a lender and
borrower are holding a loan document, and each
claims 'I dropped it', we validate it;
i. R. Shimon ben Gamliel says, they divide it.
7. Answer #1: We must switch the opinions.
ii. (Rava): 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.
8. Answer #2: 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 and bring witnesses of
Chazakah. R. Shimon ben Gamliel says that it
suffices to bring witnesses of Chazakah.
9. Kesuvos 19a (Rav Huna): If David agrees that a
document (that says that he owes Reuven) was written
properly, Reuven need not validate it.
10. Rav Nachman (to Rav Huna): 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!)
11. Rav Nachman: In such a case, I tell Reuven to
validate it first. (If not, we believe David due to
12. (Rav Yehudah): 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.
13. (Rava): He means that the borrower claims that it is
Amanah. He is not believed for the reason of Rav
1. Rif (Bava Metzia 3b): The Halachah follows Rebbi,
who says that the lender must validate it.
i. Nimukei Yosef (Bava Basra 72b DH Omar): 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.
2. Rambam (Hilchos Malveh 14:5): 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.
1. Shulchan Aruch (CM 82:1): 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.
i. Taz: 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.
2. Shulchan Aruch (ibid): 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.
i. Beis Yosef (DH Malveh): 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.
3. Shulchan Aruch (ibid): 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.'
ii. SMA (2): Even when there is Ne'emanus, there is
a Migo to say that the entire document is a
i. Beis Yosef (DH u'Mah she'Chosav v'Hu): 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.
4. Rema: If he says 'I was a minor at the time it was
written', he is believed.
ii. Shach (1): 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.
iii. Ketzos ha'Choshen (2): 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.
iv. Shach (2): 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.
v. Gra (2): 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).
vi. Note: 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.
i. Gra (3): Even though witnesses are not believed
about this, (the borrower is, for) this is no
worse than saying 'it was Amanah.'
A DOCUMENT THAT WAS VALIDATED ONLY LATER (Bava Basra 174)
Index to Halachah Outlines for Maseches Bava Basra