OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman of Kollel Iyun Hadaf, Yerushalayim daf@dafyomi.co.il http://www.dafyomi.co.il
1) A DOCUMENT THAT WAS VALIDATED ONLY LATER
(a) Gemara
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. 174b (Rav Huna): 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.
4. Objection (Rav Nachman): 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.'
i. (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!
5. Answer: Rav Huna discusses when Ploni has a
document.
6. Question: 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!
7. (Rav Nachman): 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.
8. Bava Kama 106a (Rav): 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.
9. Rami bar Chama (to Rav Nachman): You do not hold
like Rav. What forces you to (explain the Mishnah in
such a way to) answer for him?
10. Rav Nachman: I just explain how Rav must learn the
Mishnah.
(b) Rishonim
1. Rif (Shevuos 22a): When the Gemara says that one
cannot collect with a document, it is Batel. The
borrower swears Heses that he does not owe.
i. Rebuttal (Ran, Dibur Rishon): 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.
ii. Nimukei Yosef (Bava Basra 82a DH Shechiv): 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.
iii. Nimukei Yosef (Bava Basra 82b DH Omar): 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.
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', he is believed to
swear Heses and exempt himself. If afterwards the
lender validated it in Beis Din, it is like any
document.
(c) Poskim
1. Shulchan Aruch (CM 82:1): 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.
i. SMA (5): 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.
ii. Bach (DH Kosav): 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.
iii. Bach (DH Aval): 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.
iv. Rebuttal (Shach 4): 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.
v. Taz (75:25): 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.
vi. Gra (4): 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).
See also:
MUST A LENDER VALIDATE A DOCUMENT THAT THE BORROWER ADMITS TO? (Bava Basra 170)
Other Halachos relevant to this Daf:
THE MITZVAH TO PAY ONE'S FATHER'S DEBTS (Kesuvos 91)
ARVUS AFTER THE DOCUMENT WAS SIGNED (Kesuvos 102)
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