GITIN 19 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

1)

CAN NOCHRI DOCUMENTS BE USED TO COLLECT FROM MESHUBADIM? [documents: Meshubadim: Nochrim]

(a)

Gemara

1.

10b (Mishnah): All documents written by Nochri courts, even though Nochrim signed them, are valid, except for Gitei Nashim or freedom;

2.

R. Shimon says, even these are valid. They are Pasul only when done by commoners.

3.

(R. Zeira): R. Shimon holds like R. Elazar, that Edei Mesirah Karsei.

4.

11a (Beraisa - R. Shimon): R. Akiva and Chachamim agree that all documents made in Nochri courts are valid, even if Nochrim signed them, even Gitei Nashim or freedom. They argue only about documents of commoners. R. Akiva says that they are valid. Chachamim disqualify them, except for Gitei Nashim or freedom.

5.

(Rava): A Persian document given in front of Yisrael witnesses may be used to collect from Bnei Chorin (the borrower's property, but not from what he sold).

6.

Questions: The witnesses cannot read it! Also, we require writing that cannot be (erased and) forged! Also, the last line of the must summarize the document!

7.

Answer: The case is, the witnesses can read it; the paper was treated with gallnuts (it cannot be erased), and the last line summarizes the document!

8.

Question: If so, one should be able to collect even from Meshubadim (property that the borrower sold after the loan)!

9.

Answer: People do not hear about such a document. (Buyers did not know about a lien on the land.)

10.

19b: Before honoring a Persian document written by the Nochri courts, Rav Papa would ask two Nochrim to read it in front of him, in different rooms, l'Fi Tumo (unaware of the consequences). Afterwards he would use it to collect even from Meshubadim (property that the borrower sold).

(b)

Rishonim

1.

Rif (4a): A Persian document that fulfills all requirements of (Yisrael) document may be used to collect from Bnei Chorin, but not from Meshubadim, for there is no Kol (publicity).

2.

Rif and Rosh (9b and 2:13): Rav Papa would verify the contents of Persian court document through Nochrim, and use them to collect even from Meshubadim.

3.

Rambam (Hilchos Malveh 27:1): Any document signed by Nochrim is Pasul, except for a sale or loan document. If it was made in Nochri courts, and it says that the money was given in front of them, it is Kosher. My Rebbeyim ruled that even loan documents made in Nochri courts are Pasul. We are Machshir only documents of sale in which the money was given in front of them. I disagree.

i.

Magid Mishneh: The Rambam and his Rebbeyim argue about loan documents. The Sugya did not mention them. His Rebbeyim equate them to gift documents. Even though we are sure that he received the money, for judges would not ruin their reputation, if not for the document, it would be a Milveh Al Peh (a loan without a document). One is believed to say that he paid such a loan. Therefore, this document is worthless. It is unlike a sale, for a sale with witnesses is like a sale with a document in every respect. His Rebbeyim's texts (19b) allow collecting from Meshubadim with a Persian court document. Rav Papa discusses a sale document; a buyer's property was taken by a creditor, and he seeks compensation. This is like the text that one who buys property with witnesses collects (compensation) from Meshubadim. The Rambam's text allows collecting from Bnei Chorin with a Persian court document. Rav Papa must discuss a loan document, for a sale with witnesses is collected from Meshubadim. The lien is primarily due to the money, so the lender can say 'if you paid, why do I have the document?'

ii.

Question (Lechem Mishneh): The Rambam initially mentioned sale and loan documents, and concludes (below) that they may be used to collect only from Bnei Chorin! It is difficult to say that there he refers only to loan documents.

iii.

Ra'avad: His Rebbiyim ruled correctly. One cannot collect from Meshubadim with Nochri court documents, because there is no publicity. Therefore, perhaps the borrower paid and did not demand back the document.

iv.

Magid Mishneh: The Ra'avad equates this to Kesav Yado (a document in the borrower's handwriting, without witnesses). We can distinguish them, for this is a proper document.

v.

Lechem Mishneh: 'One cannot collect from Meshubadim' connotes that he can collect from Bnei Chorin, unlike the Ra'avad's conclusion! Rather, he means that even when the borrower admits that he owes, or before the loan is due, one cannot collect from Meshubadim. Therefore, if the borrower claims that he paid, he is believed.

4.

Rambam (ibid.): If Yisrael judges cannot read a court document, they verify the contents through Nochrim. They may be used to collect only from Bnei Chorin. There is no Kol; buyers do not know about what Nochrim do.

5.

Rosh (1:10): Rava allows collecting from Bnei Chorin using a Persian document given in front of Yisrael witnesses. Rashi explains that Nochri commoners signed it. The Mishnah disqualifies such documents, i.e. without Edei Mesirah Yisrael, for Nochri witnesses lie. Rav Papa allowed collecting from Meshubadim with court documents, for they have a Kol. The Ri disqualifies a document signed by Nochri commoners even if there are Edei Mesirah Yisrael. Rava discusses a court document. His text says that Rav Papa collected from Bnei Chorin. This text is primary. The only difference between commoners and courts is concern for lying; neither has a Kol. Also, R. Akiva is Machshir when Nochri commoners signed. Surely this is when there are Edei Mesirah Yisrael, and Chachamim disqualify even then. However, our Sugya supports Rashi. Rava did not say that we collect only from Bnei Chorin with a Persian document! Also, if Rava discussed a court document, he would say so to explain the Mishnah, and not like an independent teaching! The Yerushalmi says that court documents have a Kol. Therefore, I say that Rava discusses a Persian document without signatures. This is why the Gemara did not discuss who signed it. Had Nochrim signed, it would be Pasul, lest people rely on them. R. Chananel says that some explain this way.

(c)

Poskim

1.

Shulchan Aruch (CM 68:1): We can use a Nochri court document to collect from Bnei Chorin.

i.

Beis Yosef (DH Kosav ha'Rashba Kol): The Rashba cites a tradition that we collect from Meshubadim with court documents. They become known. This is the primary text, like the Rif, and unlike the Rambam. Surely we do so where there is a custom. In such monetary laws, we follow the custom.

ii.

Shach (4): The Rambam holds that he collects only from Bnei Chorin even if it is a sale document. Even though one who buys with witnesses (without a document) collects from Meshubadim, here is worse. Only Yisrael witnesses make a Kol. The Magid Mishneh holds that the Rambam allows collecting from Meshubadim with a sale document. The words of the Rambam, Tur and Shulchan Aruch connote otherwise.

2.

Rema: Some say that Stam courts do not take bribes, so we use the document to collect from Meshubadim, even without Edei Mesirah Yisrael.

i.

SMA (5): This is like the Rosh, who holds that court documents have a Kol.

ii.

Beis Yosef (DH Kosav ha'Rashba bi'Teshuvah): The Rashba (982) says that we collect from Meshubadim with a court document, even if only one witness signed.

3.

Shulchan Aruch (2): If Yisrael judges cannot read a court document, they verify the contents through Nochrim. They may be used only to collect from Bnei Chorin. If Nochri witnesses signed a document and it was given in front of Yisrael witnesses, it can be used to collect from Bnei Chorin, even if it is not a court document. This is if the Edei Mesirah can read it and read it when it was given, and it cannot be forged, like Yisrael documents.

i.

SMA (18): This opinion holds that the document is no worse than a Kinyan done in front of Edei Mesirah Yisrael without a document. It is worse than a document given in front of Edei Mesirah Yisrael, which allows collecting from Meshubadim.

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