GITIN 21 - 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)

WHO OWNS DOCUMENTS OF ACQUISITION? [document: acquisition: ownership]

(a)

Gemara

1.

20b - Question (Rami bar Chama): If we know that a woman owned a tablet, and her Get is now written on it, and she holds it, do we say that she knew to be Makneh (transfer ownership of) it to her husband, so he gave his Get, or not?

2.

Answer #1 (Abaye - Mishnah - R. Yehudah ben Bava): There was a village near Yerushalayim in which an elder used to lend to everyone. He would write the documents himself, and witnesses would sign. Chachamim permitted this.

i.

Question: The document must belong to the one who gives or puts a lien on his property (the borrower)!

ii.

Answer: We assume that he knew to be Makneh the document to the borrower. (Similarly, a wife knows to be Makneh the tablet to her husband.)

3.

Answer #2 (Rava - Mishnah): If an Arev (guarantor) signed below the witnesses, the lender may collect from the Arev's property that he did not sell. (Lenders know to be Makneh the document to the Arev when he signs. Also women know!)

4.

Kidushin 47b (Beraisa #1 - R. Meir): If one said 'be Mekudeshes to me through this loan document'; she is Mekudeshes;

5.

Chachamim say, she is not Mekudeshes.

6.

The document is for a loan that others owe to him. Chachamim hold like Shmuel, who says that one who sold his loan document can pardon the debt. She is not Gomeres b'Da'atah (resolve to accept Kidushin), due to fear lest he pardon.

7.

(Beraisa #2 - R. Meir): If one said 'be Mekudeshes to me with this document' - she is not Mekudeshes;

8.

Chachamim say, she is Mekudeshes (only) if the document is worth a Perutah.

9.

This cannot refer to a document for a loan that others owe to him, for R. Meir holds that she is Mekudeshes through such a document!

10.

Bava Kama 49b - Question (Rav Yeiba Sava): If Reuven seized documents of a convert who died (without heirs), did he intend to acquire only the land? This does not work, for Chazakah is required. Or, did he intend also for the document, and acquires it to use for a bottle-cork?

11.

Bava Basra 167a (Mishnah): The husband, borrower and buyer pay the scribe who writes a Get, loan document and sale document, respectively.

12.

The husband pays due to "v'Chosav... v'Nosan" (the one who writes the Get must be the one who gives it). Nowadays, the woman pays. Chachamim enacted this, lest a man delay giving it (because he does not want to pay for it).

13.

Gitin 20a (Rava): Perhaps Chachamim enacted that the money she pays belongs to the husband (so the scribe is his Shali'ach)!

14.

Bava Basra 167a - Question: Obviously, the borrower and buyer pay the scribe (they benefit from the loan and sale)!

15.

Answer: The Chidush is regarding an Iska (the lender shares the profits) and a field sold due to its low quality (the seller benefits).

(b)

Rishonim

1.

Rif (Kesuvos 45a): If one sold a loan document and pardoned it, according to the opinion that exempts Garmi (semi-direct ways of causing damage), he pays the buyer only for the paper of the document.

2.

Rosh (Kesuvos 9:10 b'Sof): Chachamim of Province obligate him to pay the buyer for the paper. Pardon is like payment, so the document must be returned to the borrower; he pays the scribe, so the document is his.

i.

Ran (DH v'Yesh): Some say that the borrower takes the document from the buyer, for it is like a mere security in the hands of the lender until the loan is paid. Once the loan is pardoned, there is no more lien, and the buyer must return it against his will. Rashi holds that the borrower cannot take it back. The seller tells the buyer 'you bought mere paper.' The Rashba proves this from Kidushin 48a. Chachamim say that Kidushin with a document works if the paper is worth a Perutah. If this were a loan document that others owe to him, R. Meir would contradict himself. There would be no contradiction in Chachamim, who said above that she lacks Gemiras Da'as, due to fear lest he pardon. If she would need to return the document after he pardons, also here she would lack Gemiras Da'as!

ii.

Rebuttal (Shach CM 66:76): The Gemara did not ask a contradiction in Chachamim, for perhaps we hold like a different explanation of Beraisa #1. E.g. he did not give another document to transfer the loan document, but all agree that she is not concerned lest he pardon the debt!

iii.

Ran (Kidushin 20a Sof DH v'Garsinan Tu (1)): If he gave to her a loan document owed by someone else, she is not Mekudeshes even if the paper is worth a Perutah, because the paper belongs to the borrower. If he was Mekadesh her with a security from someone else, she is Mekudeshes.

iv.

Rebuttal (Bach EH 28:11 DH u'Mah she'Chosav deb'Lo): The document is no worse than a security from someone else. She is Mekudeshes through it. The Ran himself in Kesuvos (above) said that Rashi and the Rashba say that the borrower cannot force her to return it!

v.

Defense (Shach, ibid.): A security belongs to the lender until the loan is paid. The paper of the document (is not acquired, it) is merely a security.

vi.

Hagahos Ashri (Bava Kama 5:5): If one grabbed the documents of a convert who died, we did not settle whether or not he acquired the paper.

3.

Rambam (Hilchos Malveh 24:2): The borrower pays the scribe for a loan document. The buyer pays the scribe for a sale document. A woman pays the scribe for a Get.

4.

Rambam (Hilchos Zechiyah 1:9): If one seized documents of a convert who died, in order to acquire the land written in the documents, he acquires only the document, to use for a bottle-cork and similar uses.

i.

Magid Mishneh: The document proves that he bought or received it for a gift.

(c)

Poskim

1.

Shulchan Aruch (CM 191:3): Our documents are documents of Kinyan.

i.

Ketzos ha'Choshen (1): Therefore, it must belong to the seller. The buyer pays for it; he must be Makneh it to the seller. Only regarding Gitin there was an enactment that she pay for it, and Chachamim gave it to her husband. Why didn't the Poskim mention that it must belong to the seller?! We do not do so, so it seems that our documents are not Makneh. They are only proofs.

ii.

Nesivos ha'Mishpat (Urim 1): Only the paper and ink must belong to the seller. Regarding a Get, "v'Chosav" teaches that the husband must write it or pay the scribe. There is no source mandating the seller to write the document. However, the Ramban (Bava Basra DH v'Loke'ach) says that Chachamim enacted that the buyer pay the Sofer on behalf of the seller.

2.

Shulchan Aruch (275:11): If one seized documents of a convert who died, in order to acquire the land written in it, he acquires only the document, for a cork.

i.

Shach (4): This connotes that they are documents of sale or gift. The Magid Mishneh, R. Yerucham and Sefer ha'Terumos agree. We said (Bava Kama 49b) that only Chazakah in the land would help. If they were loan documents, even Chazakah would not help, just like one cannot acquire a security of Metaltelim that the convert held! Also, we do not discuss one who errs about the Halachah. Surely, he would intend for the paper! Rashi and Hagahos Ashri say that we discuss loan documents. The Rambam's opinion is primary.

ii.

Ketzos ha'Choshen (66:27 DH Emnam...): Even though the borrower pays for the document, he must be Makneh it to the lender, like it says in Gitin. The lender must return it after the loan is paid, for it was a gift on condition to return it. The lender can sell or give it to others, for it is his until the loan is paid. He sold all his rights in it to the buyer, i.e. to keep it until the loan is paid. It is not a mere security. If it were, Shemitah would not cancel a loan with a document, just like it does not cancel a loan with a security (Gitin 37a)! Also, if one sold a document without writing 'acquire it and all liens that it creates', it is sold for a cork (Bava Basra 76b). If it were only a security, the lender (or one who buys from him) could not use it! Rashi (Bava Kama 49b) and Hagahos Ashri say that Rav Yeiba asked about one who seized loan documents of a convert. One who seized a security that a convert was holding may not keep it!

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