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Bava Metzia Chart #1
| (A) THE SHTAR IS NOT "MEKUYAM" |
(B) THE SHTAR IS "MEKUYAM" |
||
|---|---|---|---|
| 1) | THE SHTAR IS IN THE HANDS OF THE "MALVEH" | Rebbi: It needs Kiyum(1) RSB"G: He may collect(2) |
He may collect(3) |
| 2) | THE SHTAR IS IN THE HANDS OF BOTH "LOVEH" & "MALVEH" | Rebbi: It needs Kiyum(4) RSB"G: They divide it(5) |
They divide it |
| 3) | THE SHTAR WAS FOUND BY A THIRD PARTY | He may not collect(6) | T. Kama: He may not collect(7) R. Yosi: He may collect |
| 4) | THE SHTAR IS IN THE HANDS OF THE "LOVEH" | He may not collect | He may not collect |
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FOOTNOTES:
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(1) Rebbi holds "Modeh b'Shtar she'Kesavo Tzarich l'Kaimo," or in other
words, when the Loveh claims that he paid the loan he is believed through a
"Migu" since he could have claimed the Shtar was forged.
(2) That is, the Malveh may collect *all* of the loan written in the Shtar
without being Mekayem the Shtar, because of the rule of "Modeh b'Shtar
she'Kesavo Ein Tzarich l'Kaimo." (See Tosfos in Kesuvos 19a for the logic as
to why the Loveh is not believed with a "Migu" to say that the Shtar is a
forgery.) In fact, Rebbi and Raban Shimon ben Gamliel of our Beraisa could
have argued their argument in this case, where the Shtar was in the hands of
the Malveh alone (and it never even fell from his hands in the first place).
The reason why they discuss a case in which both the Loveh and the Malveh
are holding the Shtar is in order to teach a secondary point: When they both
are holding the Shtar we divide the sum written in the Shtar (i.e. the
amount of the loan) between them (MAHARI KATZ in Shitah Mekubetzes).
(3) When the Shtar is Mekuyam, the Loveh does not have a "Migu" to claim
that the Shtar is a forgery, and therefore he is no longer believed to say
that he paid it even according to Rebbi.
(4) According to Rebbi, the Malveh may not collect any of the loan until he
is Mekayem the Shtar, at which point he may collect half.
(5) That is, he may collect *half* of the loan without being Mekayem the
Shtar.
(6) The reason the loan may not be collected in such a case is because we
are concerned that the Loveh may have written the Shtar with intention to
borrow money, but then did not borrow money (and it was he who lost the
Shtar). (In the first two cases (1 & 2) in the Chart, since the Shtar is at
least partially in the hands of the Malveh we are not concerned for this
possibility.)
(7) The reasoning of the Tana Kama is that we are concerned that the debt
was already paid even though we see that the Shtar was not torn up.
(According to some, the opinions of the Tana Kama and of Rebbi Yosi are to
be reversed. See Chart #2, footnote (2).)
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