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BAVA METZIA 13

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PAST DEDICATION
BAVA METZIA 13 (14 Iyar) - Dedicated by HaGaon HaRav Yosef Pearlman of London, England, l'Iluy Nishmas his father, ha'Rabbani Reb Rephael David ben Yosef Yitzchak Pearlman, who passed away on Pesach Sheni 5758.

SUMMARY

R. Asi says that a Shtar may be written for a borrower without the presence of the lender if it is a Shtar Hakna'ah (the borrower is Makneh his property to the lender immediately). (1)
 
If someone finds a Shtar with Achrayus Nechasim if it is not a Shtar Hakna'ah it may not be returned because of the concern that it was written in Nisan and the loan did not take place until Tishrei. (2)
 
Abaye says that a Shtar may be written for a borrower even if the lender is not with him even if it is not a Shtar Hakna'ah because the witnesses are Mezakeh the Shibud to the lender as soon as they sign.
 
If someone finds a Get, a Shtar Shichrur, a Shtar of a Shechiv Mera, a gift document, or a receipt, he should not return it because maybe after it was written he had a change of heart and it was not given.
 
Abaye says that if someone finds a Shtar with Achrayus Nechasim he may not return it because of the concern that the borrower already paid and he claims that he didn't pay so that the money will be collected from the Lekuchos and he will split the money with the lender.
 
Shmuel holds that when we find a Shtar we are not concerned that it had been paid and we are not concerned for a deal between the borrower and the lender in order to collect from the Lekuchos. (3)
 
According to Shmuel the Mishnah which states that if someone finds a Shtar with Achrayus Nechasim he shall not return it is referring to a Shtar Hakna'ah or a case that the borrower doesn't admit that he owes the money. (4)
 
Shmuel holds that even if the borrower doesn't admit that he owes the money a Shtar without Achrayus Nechasim is retuned according to R. Meir because R. Meir holds that a Shtar without Achrayus Nechasim may not even be used to collect from Bnei Chorin (5)
 
R. Elazar says that the Machlokes between R. Meir and the Chachamim is when the borrower does not admit that he owes the money. (6)
 
If the borrower admits that he woes the money everyone agrees that the Shtar is returned and we are not concern that it may have been paid or there may be a deal between them to collect from the Lekuchos.
 
R. Yochanan holds that the Machlokes between R. Meir and the Chachamim is when the borrower admits that he owes the money, but if he doesn't admit that he owes the money everyone agrees that the Shtar may not be returned. (7)

A BIT MORE

1. However, if it is not a Shtar Hakna'ah we do not write the Shtar for the borrower without the lender because maybe the loan will not take place immediately and the lender will collect from the Meshubadim from the date that is written in the Shtar.
 
2. Even though a Shtar that is not a Shtar Hakna'ah may not be written for the borrower without the presence of the lender we are still concerned that the loan did not take place by the date written in the Shtar because since the Shtar had fallen and gotten lost there is greater reason for concern.
 
3. Shmuel holds that as soon as a loan is repaid the borrower rips up the Shtar and therefore there is no concern that the Shtar fell from the borrower after he already paid back the Shtar, and for that reason as well we are not concerned that the Shtar was repaid and the lender and borrower will make a deal between them to collect from the Lekuchos.
 
4. Even though Shmuel is not concerned for the possibility that the Shtar was repaid he is concerned for the possibility that the Shtar was forged and therefore if the borrower doesn't admit that he owes the money it is not returned.
 
5. Even though the Shtar may not be used to collect the loan it is returned to the lender so that he can use it as a bottle stopper.
 
6. R. Meir holds that a Shtar without Achrayus Nechasim is returned because he holds that it may not be used to collect at all even Bnei Chorin while the Rabanan hold that it is not returned because it could be used to collect from Bnei Chorin.
 
7. If the borrower admits that he owes the money a Shtar without Achrayus Nechasim may be returned according to R. Meir because it may not be used to collect from Lekuchos while the Chachamim hold that Achrayus is a Ta'us Sofer and it may be used to collect from Meshubadim and therefore it may not be returned.

BRIEF INSIGHT

COLLECTING WITH A RETURNED SHTAR
 
If someone finds a Shtar it may not be returned because of the concern that it was written in Nisan and the loan did not take place until Tishrei or because of the concern that it was paid and the lender and borrower made a deal between them to collect the money from the Lekuchos and split it between them. According to the Rambam even though l'Chatchilah the Shtar should not be returned however if it is returned it may be used and the lender may collect the money. However, the Ra'avad argues and he holds that even if b'Di'eved the Shtar is returned it may not be used and the lender may not collect the money.

QUICK HALACHAH

ONE WITHOUT THE OTHER
 
A Shtar may be written for a borrower even without the presence of the lender; nonetheless if the lender protests not to write the Shtar for the borrower we do not write the Shtar against his will. However a Shtar may not be written for the lender if the borrower is not present. (Shulchan Aruch CM 39:13)

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