ROSH HASHANAH 2 (5 Cheshvan 5782) - Dedicated in honor of the Yahrzeit of Reb Naftali ben Reb Menachem Bodner ZT"L, an Ish Chesed and Ish Ma'aseh whose Simcha and Ahavas Yisrael knew no bounds. Dedicated by his son Mordechai and family, of Givat Mordechai, Yerushalayim.
1) THE ROSH HASHANAH FOR KINGS
QUESTION: The Mishnah lists different days that serve as the new year for various matters. The first day the Mishnah mentions is the first of Nisan, the Rosh Hashanah for Melachim, kings. The Gemara asks, "l'Melachim l'Mai Hilchesa" -- what practical relevance is there for a Rosh Hashanah for kings?
RASHI explains that the Gemara means to ask why the Chachamim did not simply begin the count of each king's reign from the day on which he came to power. According to Rashi's understanding, the Gemara knows the practical ramifications of a Rosh Hashanah for kings, and it merely seeks to determine why specifically the first of Nisan was chosen to be that Rosh Hashanah.
Rashi's explanation deviates from the literal understanding of the question. Why does Rashi not explain the Gemara's question in its straightforward sense: what difference does it make that there is a Rosh Hashanah for kings?
ANSWER: The RITVA explains that Rashi was bothered by the Gemara's answer. Had the Gemara's intention been to ask what practical difference a Rosh Hashanah for kings makes, then the answer "for the sake of Shtaros" would have sufficed. However, the Gemara continues to say, "As we have learned in a Mishnah (in Shevi'is), that predated deeds of debt (Shtarei Chov ha'Mukdamim) are not valid, while post-dated ones (ha'Me'ucharim) are valid."
The Gemara should have said simply that the practical application of a Rosh Hashanah for kings is how to date Shtaros; there was no need to mention which types of Shtaros are valid. Without the second clause, one would have assumed that the Gemara refers to a simple case in which two creditors attempt to collect their debts from buyers (Lekuchos) who purchased collateralized property from the debtor. Both creditors are holding Shtaros, one of which is dated with an earlier month in the king's reign than the other. The one holding the Shtar with the earlier date is entitled to collect from the Lekuchos first. (This is the way the Yerushalmi and Rabeinu Chananel explain the relevance of the king's years according to the Mishnah.) Alternatively, one would have assumed that the significance of a Shtar marked with an earlier year in the king's reign is to determine whether the loan described in the Shtar occurred before or after a buyer purchased land from the debtor. If the loan occurred before the purchase, the land would have a lien on it and could be collected as payment for the loan, but not if the loan occurred after the purchase.
Since the Gemara does not answer simply "for Shtaros" but it adds a description of what type of Shtar is valid, it must be that the Gemara was not asking what the practical relevance is of a Rosh Hashanah for kings. Rather, the Gemara knows from the start that a Rosh Hashanah for kings has legal ramifications with regard to Shtaros. (Indeed, Rashi in the Mishnah mention this as the reason for why there is a Rosh Hashanah for kings. Rashi clearly implies that this reason is known even before the Gemara discusses it.) The Gemara means to ask why the Chachamim made a special enactment to count the years of kings from the month of Nisan.
This answer explains the words of Rashi. However, the Gemara still needs clarification. Why does the Gemara introduce the concept of predated Shtaros in order to answer its question? Why does the Gemara not answer its question by stating simply that the institution of counting kings' years from the beginning of Nisan was made in order to prevent confusion as to who should collect from Lekuchos when two (or even one) valid (not predated) Shtaros are presented to the court?
1. According to Rashi, the Gemara's logic may be that the Chachamim were not concerned that people would collect from Lekuchos improperly based on a Shtar with a vague date. To prevent such fraud, the person with the earlier Shtar, or with the purchase which predates the loan, could simply write the date more clearly (for example, he could specify in the Shtar itself the month in which the king began his reign). There is no need for an enactment of the Chachamim since anyone could thwart such fraud on his own. Rather, the Chachamim felt responsible to prevent a different problem -- the case which Rashi describes, where witnesses make a statement which might mean that the Shtar is predated but which might also mean that the Shtar is valid. In such a case, Beis Din might make a mistake about what the witnesses said and rule that the Shtar is not valid when it actually is valid. The person who loaned the money will not be to blame for not being more specific in the Shtar and for causing confusion to Beis Din, because he could not have known that he would be causing confusion. After all, he actually post-dated the Shtar (Shtar Me'uchar), writing it months after the loan took place in front of the same witnesses who saw the loan take place months earlier. The person who loaned the money had no reason to take into account the possibility that Beis Din might misinterpret the witnesses' testimony. Therefore, the Chachamim saw the need to prevent confusion by establishing one day by which to count the years of every king, so that Beis Din will not invalidate any Shtar by mistake. (M. Kornfeld)
(This answers another question on Rashi's explanation. TOSFOS (DH l'Shtaros) asks why Rashi explains that the Chachamim made their enactment for a case in which Beis Din might mistakenly invalidate a valid Shtar that was post-dated (Me'uchar). Rashi should have explained that the Takanah was made to prevent Beis Din from mistakenly collecting with a Shtar that is invalid and predated (Mukdam). According to the above explanation, the latter case is of no concern, since a predated Shtar is problematic only if a person uses it to collect from Lekuchos. In such a case, however, it is the negligence of the Lekuchos which causes their own loss. The Lekuchos should have made the date of their purchase more clear by indicating in their Shtar the exact month in which the king came to power.)
2. TOSFOS (DH l'Shtaros) explains that the Chachamim were not concerned that Beis Din might forget when the king came to power. Accordingly, when Shtaros with different dates, and which are not predated, are presented in court there will never be confusion about which was written first. Rather, the reason the Chachamim instituted that the king's years be counted from the beginning of Nisan was because the scribe who writes the date in the Shtar may forget which day the king came to power and write the wrong year of the king's reign in the Shtar, thereby predating it inadvertently.
Although part of the scribe's professional responsibility is to know the date of the king's appointment, nevertheless one year from the king's appointment he might mistakenly think that the king was appointed one day later than he actually was. For example, if the king was appointed on the first of Adar, on the following first of Adar the scribe might remember incorrectly that the king was appointed on the second of Adar. He will write the date in the Shtar as, "first of Adar, first year of the king," thereby inadvertently predating the Shtar by an entire year. The Chachamim's enactment that all kings' years begin at the first of Nisan prevents the scribe from making such a mistake.
(Tosfos maintains that the Chachamim are concerned for exactly the opposite of what Rashi maintains. Tosfos maintains that the Chachamim are concerned that the scribe will make a mistake at the time he writes the Shtar, but they are not concerned that Beis Din will make a mistake at the time the Shtar is presented to them. Rashi, on the other hand, maintains that the Chachamim are concerned that Beis Din might make a mistake when they are presented with the Shtar years after the death of the king, and by that time the date of the king's appointment will have been forgotten. Beis Din might not remember the correct date of the king's appointment. The scribe, however, who writes the Shtar when the king is still alive, will make no mistake about the true date of the Shtar.)
3. RABEINU CHANANEL (as mentioned above) explains that the Gemara's answer is "Lav Davka," imprecise. When the Gemara says that a Rosh Hashanah for kings is needed in order to know which Shtar is predated, it also means that a Rosh Hashanah for kings enables one to know which Shtar collects first when two creditors of the same debtor present two Shtaros to collect from Lekuchos. (The Yerushalmi here also says that this is the reason for a Rosh Hashanah for kings; see end of Tosfos DH l'Shtaros.) Why, then, does the Gemara mention the Mishnah which says that a predated Shtar is invalid?
The BA'AL HA'ME'OR explains that the Gemara not only answers the question of why there is a need for a Rosh Hashanah for kings, but it teaches an additional lesson. One might have thought that, b'Di'eved, if he wrote the date in the Shtar counting from the day the king came to power, the Shtar is nevertheless valid. The Gemara therefore teaches that such a Shtar is invalid even b'Di'eved because it is predated.
The RA'AVAD answers that when the Gemara mentions that a predated Shtar is invalid, it does not mean that a Rosh Hashanah for kings is necessary specifically to prevent the problem of predated Shtaros. The Gemara includes all cases of Shtaros which enable the bearer to collect based on the precedence of the date written in the Shtar, including the case of two Shtaros being collected from the Lekuchos of one debtor.
2) PROVING THAT A CONTRACT IS PREDATED
QUESTION: The Gemara says that a predated deed of debt (Shtar Mukdam) is invalid because it indicates that a loan took place at an earlier time than it actually did. Such a Shtar can lead to unlawful collection of property which others bought from the debtor after the date written in the Shtar but before the loan actually took place.
How is it possible to prove that a Shtar is predated? The Gemara in Kesuvos (18b) teaches that the signatures of witnesses on a Shtar are akin to testimony given in Beis Din. Accordingly, the signatures on a Shtar testify to the date written therein. Other witnesses who testify that the Shtar was signed on a date later than the one written in the Shtar should not be believed to contradict the testimony of the first set of witnesses. The most they could do is create a situation of "Trei u'Trei" (two against two), in which case the Shtar would not be invalid (Kesuvos 20a, see Rashi there). If the same witnesses who signed the Shtar testify later that they signed it untruthfully and that it was actually written earlier than the date written therein, they are not believed because "a person is not believed to make himself an evildoer" ("Ein Adam Mesim Atzmo Rasha"; Kesuvos 18b). Furthermore, the Gemara (ibid.) explains that if the signatures on the Shtar have already been authenticated ("Mekuyam"), the witnesses cannot retract their original testimony now and say that the Shtar is predated ("Keivan she'Higid, Shuv Eino Chozer u'Magid"). All aspects of the writing of the Shtar are assumed to have been done properly and lawfully.
How, then, can there ever be a case of a Shtar that is proven to be a Shtar Mukdam?
(a) RASHI (DH Shtarei Chov) is bothered by this question. He explains that there is a case in which it is possible for witnesses to sign a predated Shtar without any wrongdoing. In such a case, the witnesses would be believed to say that the Shtar is predated because they did not do anything wrong when they signed it, and thus they are not declaring themselves to be evildoers. The case is as follows:
One is permitted to write a Shtar for a borrower even when the lender is not present and the loan has not yet actually occurred, because the Shtar is solely to the detriment of the borrower and to the benefit of the lender (Bava Basra 167b). In such a case, the borrower is responsible to go to the lender immediately (and not at a later date), borrow the money, and give the Shtar to the lender. However, the borrower might wait until a later date to go to the lender and borrow the money, and he will thereby render the Shtar a predated one. In such a case, the witnesses who signed the Shtar did nothing wrong. Therefore, they (or even other witnesses, as the RITVA points out) are believed to say that the date on the Shtar is not the date on which the loan occurred. (Other witnesses know that the Shtar was predated because the borrower and lender admitted to them that the loan occurred on a later date.)
The Rishonim (see TOSFOS DH l'Shtaros) question Rashi's explanation from the Gemara in Bava Metzia (13a). The Gemara there concludes that one may not sign a Shtar for a borrower unless he sees the loan take place, because of the concern that he will give it to the lender only at a later date.
How can Rashi suggest that the Chachamim permit such a Shtar to be written l'Chatchilah? Such a Shtar poses a significant risk to any buyer who purchased land from the borrower. An unscrupulous person will have witnesses sign a Shtar attesting that he borrowed money on a certain date. At a later date, he will sell some of his property to buyers. At an even later date, he will borrow money from a lender and give him the original (predated) Shtar. He will not have to pay back his loan, since the lender will simply collect the loan from the property purchased by the buyers apparently (but not actually) after the date of the loan.
Perhaps Rashi's explanation here is based on his comments earlier with regard to a Shtar Mukdam. According to Rashi, a Shtar Mukdam is invalid only with regard to appropriating land (with a lien) from Lekuchos. It does, however, serve as proof in court that a loan took place so that the lender can collect from the borrower himself. (TOSFOS and other Rishonim disagree and assert that a Shtar Mukdam cannot serve even as proof for the loan.) According to Rashi, the Gemara in Bava Metzia simply means that one may not collect from Lekuchos with a Shtar Mukdam which makes no mention that the witnesses saw the loan take place. The Shtar may be used as proof that the loan took place (to collect the money from the borrower himself).
Accordingly, when the Mishnah states that a predated Shtar is invalid, it refers to any Shtar which makes no mention that the witnesses saw the loan take place (for example, it was written for a borrower when not in the presence of the lender). Such a Shtar may not be used to collect from Lekuchos. In such a case, not only are the witnesses believed to testify that such a Shtar is predated, it is even assumed without any testimony that it is predated. This is why Rashi writes that if there is no testimony that the Shtar is not Mukdam, Beis Din judges the Shtar to be Mukdam. (Tosfos also disagrees with this point.) (M. Kornfeld)
(b) The BA'AL HA'ME'OR, based on his understanding of the Yerushalmi (Shevi'is 10:3), answers that although witnesses normally are not believed to say that they acted wrongly, they are believed to say that they made the type of mistake which is common for people to make. They are not considered as though they are declaring themselves evildoers, and their new testimony is not considered an attempt to retract their original testimony.
What common mistake did the witnesses make in this case? It is common for a person to think that he is permitted to sign a predated Shtar when the loan actually occurred on the earlier date. Alternatively, the witnesses mistakenly thought that one is permitted to write a Shtar for a borrower even when the lender is not present and the loan is not taking place at that time. (Rashi in fact permits this, as stated above.)
The RITVA, RASHBA, and RAMBAN (cited by the Chidushei ha'Ran) explain that this is true only when the signatures in the Shtar have not yet been authenticated by Beis Din ("Ein Kesav Yadam Yotzei mi'Makom Acher") and the witnesses testify that the signatures are theirs but that they made a mistake and signed a Shtar Mukdam. Without these conditions, their testimony would be considered "Chozer u'Magid," a retraction of their original testimony (which is not allowed).
The CHIDUSHEI HA'RAN writes that the Ba'al ha'Me'or implies that the same law applies even when the signatures in the Shtar are verified by the testimony of others who recognize them ("Kesav Yadam Yotzei mi'Makom Acher"). Nevertheless, it is still not considered as though the witnesses have retracted their original testimony. (However, if this is the Ba'al ha'Me'or's intention, a paradoxical conclusion emerges. When others say that the first set of witnesses made a mistake, according to the Ba'al ha'Me'or they are not believed since they "contradict" what is written in the Shtar. When, however, the witnesses themselves say that they made a mistake, they are believed and are not considered to contradict what is written in the Shtar.)
(c) The RITVA offers a simple answer. A Shtar can be proven predated if witnesses testify that the lender and borrower admitted to them that the Shtar was predated and that the loan took place at a later date. "Hoda'as Ba'al Din" -- a statement of admission in which the claimant himself admits that the Shtar may not be used to collect from the Lekuchos -- overrides the testimony of witnesses, and thus their testimony cannot give the claimant title to the property of the Lekuchos.
(Although the "Hoda'as Ba'al Din" invalidates the Shtar for collecting from Lekuchos, the lender still has clear proof that the loan took place (albeit at a later date) -- the testimony of the witnesses. Whether or not the loan may be collected from Lekuchos even against the lender's admission that the loan took place later is the subject of further discussion. The borrower, who wrote and gave the lender a Shtar at an earlier date, obligated himself through Hoda'ah to pay up whether or not he took money at that time. The later loan would then create a second obligation and would not be the source for the alleged obligation described in the Shtar.)