CONCERN FOR FRAUDULENT COLLECTION
Question (Mishnah): We may write a document for the borrower in the lender's absence.
Why is this l'Chatchilah? Perhaps he will not lend the money on the date of the document, and he will improperly take land from people who bought before the loan!
Answer #1 (Rav Asi): The Mishnah discusses Hakna'ah documents, in which the borrower puts a lien on his land immediately (so the collection is proper).
Question: The Mishnah says that if it has Achrayus, the finder may not return it. We said that this is when Shimon admits that he owes. We are concerned lest the loan was given after the date on the document, and Reuven will collect improperly from property sold before the loan;
If it is a Hakna'ah document, the collection is proper;
If it is not a Hakna'ah document, it would be written only in front of the lender. Surely, the loan was the same day!
Answer (Rav Asi): The Halachah is, a document without Hakna'ah should be written only in front of the lender;
Since this document was lost, we are concerned lest it was written (improperly) in the lender's absence.
Answer #2 (to Question (a) - Abaye): Even if a document is not Hakna'ah, when witnesses sign, the lender immediately acquires (a lien on the borrower's land).
Abaye did not learn like Rav Asi, due to this question. Since documents that are not Hakna'ah are written only in front of the lender, we should not be concerned lest the money was not given on the date!
Question (against Abaye - Mishnah): If one finds a Get of divorce or freedom, a document of a gift from a dying man or a receipt, he may not return it, perhaps they were written and never given.
Why should this matter? When witnesses sign, the lender acquires immediately!
Answer: He acquires only if the document is ultimately given.
Question: The Mishnah says that if it has Achrayus, we do not return it. We established this to be when Shimon admits, lest the loan was given after the date (and Reuven will collect illegally).
Answer #1 (Rav Asi - above): This refers to documents that are not Hakna'ah.
Abaye says that when witnesses sign, the lender acquires immediately. How can he answer?
Answer #2 (Abaye): We are concerned lest the loan was already repaid. The borrower admits because he is scheming to help the lender collect from buyers illegally (and share the profit).
ANOTHER EXPLANATION OF THE MISHNAH
Question: Shmuel is not concerned for repayment and scheming. How can he answer?
Answer #1: If he learns like Rav Asi, he can answer like Rav Asi.
However, if he learns like Abaye, how he can answer?
Answer #2: The Mishnah discusses when Shimon does not admit.
Question: If so, when there is no Achrayus, why do we return the document?
Granted, Reuven cannot collect from land that Shimon sold, but he can collect from Bnei Chorin (property that Shimon owns)!
Answer: Shmuel says (like he said elsewhere) that according to R. Meir, a document without Achrayus cannot be used to collect at all.
Question: If it cannot be used for collection, why return it?
Answer (Rav Nasan bar Oshiya): The lender can use the parchment to cork a bottle.
Question: Why don't we return it to the borrower?
Answer: The borrower claims that the lender forged the document.
THE ARGUMENT IN THE MISHNAH
(R. Elazar): The argument in the Mishnah is when Shimon does not admit. R. Meir says that a document without Achrayus cannot be used to collect at all. Chachamim hold that in can be used to collect from Bnei Chorin.
When Shimon admits, all agree that we return it. We are not concerned for repayment and scheming.
(R. Yochanan): They argue about when Shimon admits. R. Meir agrees that a document without Achrayus can be used to collect from Bnei Chorin. Chachamim hold that it can be used to collect even from Meshubadim (property that the borrower sold).
When Shimon does not admit, all agree that we do not return it. We are concerned for repayment.
A Beraisa supports R. Yochanan, refutes R. Elazar in one point, and refutes Shmuel in two points.
(Beraisa - R. Meir): If Levi found a document with Achrayus, even though the lender and borrower agree, he may not return it to either;
If the document has no Achrayus, if the borrower agrees, Levi returns it to the lender. If not, he may not return it to either.
This is because documents with Achrayus can be used to collect even Meshubadim. Documents without Achrayus can be used to collect from Bnei Chorin.
Chachamim say, either can be used to collect even Meshubadim.
This refutes R. Elazar, who said that R. Meir says that a document without Achrayus cannot be used to collect at all;
Also, R. Elazar said that neither Tana is concerned for scheming, but the Beraisa is concerned (it says not to return a document with Achrayus even when both admit)!
Question: R. Elazar is refuted on two points! (Above, we said that he is refuted on only one)!
Answer: Both points stem from one source;
Because he says that they argue only when Shimon does not admit, he was forced to say that neither is concerned for scheming.