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.

1)

(a)Rav Asi just concluded that it is forbidden to write a Shtar without the creditor being present, unless it is a Shtar Hakna'ah. What problem do we have with this, based on our Mishnah, which we just established when the debtor admits that the Shtar is valid and that he owes the money, yet if it contains Achrayus, it may not be returned to the creditor, because we are afraid that the Shtar was written before the loan took place?

(b)How does Rav Asi resolve this problem? Why, in our Mishnah, do we nevertheless suspect that it was written before the loan took place?

(c)Abaye disagrees. According to him, if writing a Shtar for the debtor without the creditor being present were prohibited, we would not suspect the Sofer of contravening the prohibition (even though the Shtar was lost). In that case, why does Abaye permit writing such a Shtar, even when the creditor is not present. Why is the Shtar not then 'Mukdam' and therefore Pasul?

1)

(a)Rav Asi just concluded that it is forbidden to write a Shtar without the creditor being present, unless it is a Shtar Hakna'ah. The problem with this, based on our Mishnah, which we just established when the debtor admits that the Shtar is valid and that he owes the money, yet if it contains Achrayus, it may not be returned to the creditor, because we are afraid that the borrower may have written the Shtar before he made the loan is that according to Rav Asi, 'Mah Nafshach', if it is a Shtar Hakna'ah, so what if he did? and if it is not, why should we suspect the Sofer of writing a forbidden Shtar?

(b)Rav Asi resolves this problem, like we resolved the previous one by stressing the fact that the Shtar was lost, in which case, it is considered flawed and we suspect that it was written before the loan took place.

(c)Abaye disagrees. According to him, if writing a Shtar for the debtor without the creditor being present was prohibited, we would not suspect the Sofer of contravening the prohibition (even though the Shtar was lost); and the reason that we permit such such a Shtar to be written, even when the creditor is not present, according to him is based on the principle 'Eidav ba'Chasumav Zachin Lo' (the witnesses that sign on a Shtar-Chov, legalize the loan retroactively from the time of signing, even if the debt takes place only later.

2)

(a)What does the Mishnah in Gitin say about a case where someone found Gitei Nashim, Shichrurei Avadim, Dayt'ki, Matanah or Shovrin?

(b)What is ...

1. ... 'Dayt'ki'?

2. ... 'Shovrin'?

(c)According to Abaye, why do we not return them, on the basis of 'Eidav ba'Chasumav Zachin Lo'?

(d)According to Abaye, how is it possible to ever have a Shtar 'Mukdam' (which is Pasul)?

2)

(a)The Mishnah in Gitin states that in a case where someone found Gitei Nashim, Shichrurei Avadim, Dayt'ki, Matanah or Shovrin he is forbidden to return them.

(b)

1. 'Dayt'ki' is the last will of a dying man (the acronym of 'Da Teiku' this stands', because the last (spoken) will of a dying man is considered as if it was already written and handed over to the beneficiary.

2. 'Shovrin' are receipts.

(c)According to Abaye, we do not return them because 'Eidav ba'Chasumav Zachin Lo' only applies retroactively from the time the creditor receives the Shtar, whereas in this case, we suspect that the debtor wrote the Shtar, but never gave it to the him in the first place.

(d)According to Abaye, a Shtar is 'Mukdam' and Pasul if the date on it precedes the actual signing (either where the writing and the dating of the Shtar took place before the signing of the witnesses, or where the writing and signing took place simultaneously, but it was pre-dated).

3)

(a)According to Rav Asi, we established our Mishnah 'Matza Shtarei-Chov Im Yesh bahen Acharayos Nechasim, Lo Yachzir' by Shtaros that are not Shtarei Hakna'ah. Why is the finder not permitted to return them, according to Abaye?

(b)Why do the Rabanan then prohibit even the return of Shtaros which do not contain Achrayus (see Tosfos DH 'Haynu')?

3)

(a)According to Rav Asi, we established our Mishnah 'Matza Shtarei-Chov Im Yesh Bahen Achrayus Nechasim, Lo Yachzir' by Shtaros that are not Shtarei Hakna'ah. According to Abaye however, the prohibition extends even to Shtarei Hakna'ah because we are afraid that in fact, the debt has already been paid, and the reason the debtor denies this is because he is in collusion with the creditor, who wants to claim again from the purchasers.

(b)And the reason the Rabanan then prohibit even the return of Shtaros which do not contain Achrayus is because they hold 'Achrayus Ta'us Sofer' (every Shtar automatically includes Achrayus, and the failure to insert it in the Shtar is merely an error on the part of the Sofer [Tosfos DH 'Haynu']).

4)

(a)Why does Shmuel not suspect that a Shtar-Chov has been paid?

(b)Shmuel might hold like Rav Asi, and establish our Mishnah by Shtaros that are not Shtarei Hakna'ah. How will he explain the Mishnah, assuming he holds like Abaye?

(c)Why do we not permit the return of the Shtar, and substantiate it through its signatories?

(d)If Shmuel holds like Abaye, as we just suggested, why does he confine the return of found Shtaros to Shtarei Hakna'ah (see 14a), seeing as Abaye does not differentiate between the two types of Shtar?

4)

(a)Shmuel does not suspect that a Shtar-Chov has been paid because the debtor would then have torn up the Shtar immediately (even if he denies owing the money, and certainly if he admits it).

(b)Shmuel might hold like Rav Asi, and establish our Mishnah by Shtaros that are not Shtarei Hakna'ah. Assuming he holds like Abaye however he will establish the Mishnah where the debtor denies the claim.

(c)We do not permit the return of the Shtar, and substantiate it through its signatories because a Shtar that has been lost is considered flawed (as we have already explained).

(d)Even though Shmuel might hold like Abaye (who does not differentiate between the two types of Shtar), as we just suggested, he nevertheless confines the return of found Shtaros to Shtarei Hakna'ah (see 14a) because he suspects that the loan may never have taken place, in which case even Abaye will agree that they are Pasul (as we explained above).

5)

(a)If our Mishnah is speaking when the debtor claims that the Shtar is forged, as we just explained according to Shmuel, why does Rebbi Meir permit the return of a Shtar which does not contain Achrayus? Why is he not afraid that, even though the creditor cannot claim from Meshubadim, he will claim from Bnei Chorin?

(b)What is then the point of returning the Shtar to the creditor?

(c)Then why return it to the creditor and not to the debtor?

(d)And why do the Rabanan then forbid returning the Shtar?

5)

(a)Even if our Mishnah is speaking when the debtor claims that the Shtar is forged, as we just explained according to Shmuel, Rebbi Meir will permit the return of a Shtar which does not contain Achrayus because Shmuel holds that according to Rebbi Meir, a Shtar that does not contain Achrayus, is completely invalid, and one cannot even use it to claim from Bnei Chorin either.

(b)Consequently, says Rav Nasan bar Hoshaya, the point of returning the Shtar to the creditor is to use as a bottle-stopper.

(c)And the reason that we return it to the creditor and not to the debtor is because it would be absurd to return a Shtar to someone who denies having written it in the first place.

(d)The Rabanan, on the other hand, forbid returning the Shtar because they suspect the Shtar to be forged, and if it is returned, it is will be used to claim from Bnei Chorin.

13b----------------------------------------13b

6)

(a)According to Rebbi Elazar, Rebbi Meir and the Chachamim will agree that once the debtor concedes the validity of the Shtar, the finder is obligated to return the Shtar, and we are not worried about collusion. Bearing in mind then, that they are arguing over a Shtar without Achrayus, what is the basis of their Machlokes?

(b)This conforms with the opinion of Shmuel (assuming that he holds like Abaye). According to Rebbi Elazar and Shmuel, what status would this Shtar have had, had it not got lost, according to ...

1. ... Rebbi Meir?

2. ... the Chachamim?

6)

(a)According to Rebbi Elazar, Rebbi Meir and the Chachamim will agree that once the debtor concedes the validity of the Shtar, the finder is obligated to return the Shtar, and we are not worried about collusion. Bearing in mind then, that they are arguing over a Shtar without Achrayus, the basis of their Machlokes is where the debtor claims that the Shtar is invalid. Rebbi Meir holds that a Shtar without Achrayus cannot be used even to claim from Bnei Chorin (so there is no harm in returning it, as we explained according to Shmuel), whereas the Chachamim permit it (because we suspect that the Shtar is forged ... [as we explained there]).

(b)This conforms with the opinion of Shmuel (assuming that he holds like Abaye). According to Rebbi Elazar and Shmuel, had this Shtar not got lost, it would have had the status, according to ...

1. ... Rebbi Meir of a Milveh-al-Peh (an oral loan) without witnesses.

2. ... the Chachamim of a Milveh-al-Peh with witnesses.

7)

(a)Rebbi Yochanan establishes the Machlokes between Rebbi Meir and the Chachamim when the debtor admits that the Shtar is valid. Then what is the basis of their Machlokes? Why does Rebbi Meir say 'Yachzir', and the Rabanan 'Lo Yachzir'?

(b)And why will even Rebbi Meir concede 'Lo Yachzir', if the debtor objects?

(c)We cite a Beraisa, which establishes the Machlokes where the debtor admits that the Shtar is valid, like Rebbi Yochanan (leaving us with a Kashya on Rebbi Elazar). What does the Tana say concerning ...

1. ... a Shtar which does not contain Achrayus, according to Rebbi Meir?

2. ... a found Shtar which contains Achrayus which the debtor himself validates, according to both Rebbi Meir and the Chachamim?

(d)Seeing as Rebbi Elazar holds a. that Rebbi Meir completely invalidates a Shtar which does not contain Achrayus, and b. that neither Tana suspects collusion (clashing with the Beraisa in both issues), why do we consider this to be only one Kashya and not two?

7)

(a)Rebbi Yochanan establishes the Machlokes between Rebbi Meir (who says 'Yachzir') and the Chachamim (who say 'Lo Yachzir') when the debtor admits that the Shtar is valid, and they argue over whether one may claim exclusively from Bnei Chorin (Rebbi Meir) or even from Meshubadin (because Achrayus Ta'us Sofer [the Chachamim]), in which case we suspect that the debtor has already paid and that he is in collusion with the creditor to claim again from the purchasers.

(b)Even Rebbi Meir will concede 'Lo Yachzir' however, if the debtor objects because he is afraid that maybe the debt has been paid.

(c)We cite a Beraisa, which establishes the Machlokes where the debtor admits that the Shtar is valid, like Rebbi Yochanan (leaving us with a Kashya on Rebbi Elazar). The Tana rules that ...

1. ... if a Shtar does not contain Achrayus according to Rebbi Meir the creditor may claim from Bnei-Chorin.

2. ... a found Shtar which contains Achrayus and which the debtor himself validates may not be returned to either the creditor or the debtor (because we are afraid of collusion), according to both Rebbi Meir and the Chachamim.

(d)Despite the fact that Rebbi Elazar holds a. that Rebbi Meir completely invalidates a Shtar which does not contain Achrayus, and b. that neither Tana suspects collusion (clashing with the Beraisa in both issues), we nevertheless consider this to be only one Kashya and not two because having established the Machlokes where the debtor objects to the validity of the Shtar, he had to issue the first of the two statements, and it is natural for him to conclude that when he admits to the Shtar's validity, both sides agree that one returns the Shtar, thereby forcing him to issue his second statement.

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