The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Metzia 13a-b
Beginning with the Mishnah on yesterday’s daf (12b), the focus in our perek is on what to do what you find a shetar – a legal document – which contains information about a transaction between two people. Since it is not clear who was holding the shetar when it was lost, to whom should it be returned, or, perhaps, it cannot be returned to either of them.
One position that is presented on our daf is the opinion of Shmuel, who follows Rabbi Meir in ruling that a promissory note that does not contain achrayut nechasim – it is not guaranteed with real estate – cannot be collected, neither from property that was in the borrower’s possession at the time of the loan, nor from any other source. Thus, such a note can be returned to the lender whose name appears on the note, since it will not be collected in any case.
The Gemara asks that if the note is worthless, why would there be any point in returning it? Rabbi Natan bar Oshiya explains that it can be used la-tzor al pi tzlochito – to use to stop up a bottle.
In the ancient world, which was, generally speaking, poorer in terms of physical resources than the modern world, any object, no matter how small or insignificant, was used to its fullest extent. The tzlochit – the bottle – discussed here was a utensil, usually made of clay, with a narrow neck and small opening used for storing liquids like wine or oil. Most clay vessels were made with matching covers from the same material that would be used to protect the integrity of whatever was stored inside. Tzlochiyot were an exception, and covers were not always made for them, so when they needed to be closed any available material suitable for that purpose was used.
In this context it is worth noting that the “paper” of those days – which was actually a type of papyrus – was much stronger than what we use today, which is why is could have been used to stop up a bottle and protect its contents. Nevertheless, this was certainly a minor use of the material and its value – even in those days – was minimal.
Bava Metzia 14a-b
Jewish law recognizes that formal loans that are recorded in signed contracts create liens on the property of the borrower that effectively guarantee payment of the loan. Therefore, if a borrower cannot pay back his loan, the lender has the right to take possession of real estate that was owned by the borrower at the time of the loan – even if it had subsequently been sold to a third party. Clearly the borrower will have to make amends with the purchaser, given that the sale has effectively been nullified.
In our Gemara, Abayye teaches that in a case where “Reuven” sold property to “Shimon” – and guaranteed the sale – and Reuven’s creditor came and collected the property from Shimon as payment of Reuven’s outstanding loan, it would be appropriate for Reuven to enter negotiations with the creditor. The creditor cannot claim that his interaction with Reuven has ended, and it is now up to Reuven to compensate Shimon, but Reuven has no right to engage him further. The Gemara concludes that this is even true if Reuven did not guarantee the sale to Shimon, because Reuven can argue that he does not want Shimon to have complaints against him.
The question raised by the rishonim is why this ruling is significant. What difference does it make whether it is Reuven or Shimon who argues with the creditor?
Rashi suggests that, given his previous interactions with the creditor, Reuven has a larger array of arguments that he can make. He can claim, for example, that the loan was already paid, or that there are other outstanding loans that are owed to him that would cancel the debt that is owed. Other suggestions are that Reuven can argue that there is still time before the loan comes due, or that the contract that was brought to court was forged. The Rosh brings an explanation that the Ramban says is the simplest approach to this story. According to the Rosh there is no real difference between Reuven and Shimon – either one could make the same arguments. Nevertheless, we know that some people are more talented at presenting arguments in court. If Reuven is particularly adept at presenting his case, he can take the initiative to do so, and the creditor cannot insist that only Shimon – a less talented adversary – has the right to argue in court.
Bava Metzia 15a-b
When someone borrows money and the loan is formalized in a shetar – a promissory note – it was commonplace to include achrayut nechasim – a guarantee that the loan would be paid from real estate held by the borrower at the time of the loan. If the borrower sold his land to a third party before the loan was paid off, the land is sold with a lien on it and in the event that the borrower cannot pay his debt when it comes due, the lender will be able to collect what is owed to him from the purchaser.
Our Gemara examines a position put forward by Shmuel who rules that if the borrower cannot pay, then the lender can collect not only from the guaranteed field itself, but also from any increase in the value of the field that derives from the investment that the third-party purchaser made in the field. Rava explains that this rule is based on the standard contract that was written at the time that a field was sold, where the seller guarantees to the purchaser that he will make sure that the purchaser will be fully reimbursed should there be any problem with the purchase, the investment or the profits stemming from the sale. The witnesses on this contract then sign a statement that the seller agreed to all the stipulations that it contains – Rabbeinu Chananel and the Rambam suggest that the witnesses’ signatures indicate that the purchaser agrees to all of the stipulations, indicating that he recognizes that his profits and investment may be taken, but is guaranteed reimbursement for them.
According to the Rosh, by pointing out the language of the contract, Rava is bringing support to Shmuel’s ruling that the lender can collect from the purchaser’s investment, but also gives the reason for it. If the purchaser would lose his investment, the Sages would not have established such a rule. Since he is guaranteed reimbursement, the Sages preferred to establish the law in favor of the lender – she-lo tinol delet bi-fnei lovin – in order to encourage people to lend money (literally “so that the door should not be locked in the face of borrowers”).
Bava Metzia 16a-b
As we learned on yesterday’s daf, when someone borrows money and the loan is formalized in a shetar – a promissory note – it was commonplace to include achrayut nechasim – a guarantee that the loan would be paid from real estate held by the borrower at the time of the loan. On occasion the bet din – the Jewish court – would be called in to effect that payment, and they would write a court document that officially declared that the borrower’s property had been “purchased” by the lender. Such documents were called shetarei chaltata where a given piece of land was transferred to the lender, or shetarei adrachta where the court gives the right to the lender to collect from the borrower’s property.
Rabbi Zeira teaches that documents like these are the court documents that can always be returned to their owner, since they are not used to collect a debt, rather they are written to be used as proof after the court had already transferred the property to the lender. [Many of the rishonim remove the term shetarei adrachta from the Gemara, leaving only shetarei chaltata since a shetar adrachta was used to collect a debt, and we would need to be concerned that the debt had already been paid.]
Rava argues with Rabbi Zeira, suggesting that even shetarei chaltata may be considered documents that can be used to collect a debt, since the borrower who lost his field has the right to buy it back from the lender up to a year later, or perhaps even longer. If he paid the borrower for the field, he could have demanded return of the shetarei chaltata from the lender, so that the lender would no longer be able to claim that he had purchased the field. Nevertheless, Rava agrees with Rabbi Zeira that shetarei chaltata can be returned to the lender if they are found, since the borrower must live with the consequences if he lost it, since he should have torn up the shetar chaltata or asked for a separate contract that would prove that he had repurchased the field.
Bava Metzia 17a-b
Rabbi Chiya bar Abba quoted Rabbi Yochanan as teaching that if someone claims to have already paid an obligation that was established by the courts – e.g. a man who divorces his wife and is obligated to pay her ketubah – he is not believed without proof. The Gemara offers a straightforward reason for this – an obligation that is based on a rule established by the courts is considered to have the strength and significance of an official document held by the plaintiff. Thus, without proof or witnesses, the defendant will not be believed on the strength of his claim.
Upon hearing this teaching, Rabbi Chiya bar Abba pointed out to Rabbi Yochanan that his teaching was the underlying basis of a Mishnah in Masechet Ketubot (88b) which teaches that a woman who produces a get (a divorce document), even without a ketubah, will still be able to collect what is owed her. Rabbi Yochanan accepted Rabbi Chiya bar Abba’s point, but told him that “had he not lifted that chaspa (pottery shard), he would not have discovered the jewel underneath it” (that is to say, it was only because of his teaching that Rabbi Chiya realized the significance of the Mishnah in Masechet Ketubot).
The analogy of the clay shard and the jewel can be understood simply as the difference between the valueless covering and the valuable hidden object. Tosafot, however, point to a more exact meaning, quoting Rabbeinu Tam as explaining that on the ocean floor there are large stones that look like pottery shards, and jewels can be found underneath them. Some suggest that the word chaspa is, in fact, the name of the sea shell in which pearls are found, and the idea conveyed by Rabbi Yochanan is that if someone does not pay close attention to the simple sea shell, he will not succeed in finding the pearl.
Bava Metzia 18a-b
The Mishnah on our daf discusses someone who found a type of shetar (a document)-
- Gitei nashim – divorce documents
- Shichrurei avadim – a document that frees a non-Jewish slave
- Dyatiki – a document that records property willed by someone on their deathbed
- Matana – a document that records presents given to others
- Shovarim – receipts written by a lender to a borrower
According to the Mishnah, in all of these cases the document cannot be returned to either of the people mentioned, because it is possible that the individual who arranged for the document to be written changed his mind and did not do so. If that is the case, then what was written in the document never took effect, since a divorce or a present, for example, only takes place when the document is handed over by the person who has the power to effect the divorce or the present. If the document is given to them by the finder, the recipient may lie and use the document as proof to the falsehood.
Although the Mishnah only gives a reason for not giving the document to the intended recipient, it is clear that the document can also not be given to the person who wrote the shetar, since, as the Me’iri explains, it is likely that the document really was handed to the intended recipient properly, and that he is the one who dropped the shetar.
In truth, if the shetar was returned to its author, the situation would ordinarily be no worse for the intended recipient than if the finder holds on to it himself, since, in any case, without the proof of a legal document, the woman will have to bring witnesses to prove that she is divorced, the slave will have to bring witnesses and so on. Nevertheless, the Mishnah teaches that it cannot be returned to its author, since we only return an object that was found to the person who we are convinced it belongs to, and there is no clear indication of ownership in this case.
Bava Metzia 19a-b
Does a non-Jewish slave prefer his status as a slave or would he prefer to be free?
This question, which is discussed in Masechet Gittin (12b), is subject to a disagreement between the amoraim, and it may affect the ruling that we learned in the Mishnah on yesterday’s daf, regarding returning a shetar shichrur – a document freeing the slave – to the slave if it was found.
Although the Mishnah teaches that a shetar shichrur that was found should not be given to the master or the slave, our Gemara quotes a baraita that teaches that the shetar shichrur can be given to the slave if the master admits that he had already set the slave free with this document. The Gemara questions whether this is a good policy, given the fact that the master may have written the date on the document, but not actually have transferred it to the slave until a later date. This may create problems if the slave purchased land during that period – which therefore belonged to his master – and the confusion regarding the date of his independence may allow the real estate which guaranteed any loans taken by the master to be mistakenly thought to belong to the slave.
The Gemara explains that according to some opinions this is not a concern, since Abayye believes that the moment the witnesses sign the shetar it takes effect, even before it was given to the person for whom it was intended. In our case, this would work only if freeing the slave was considered to be to his benefit, based on the Talmudic rule zakin le-adam she-lo be-fanav – that someone can perform an act for his friend’s benefit, even without his friend’s knowledge.
Tosafot in Gittin explain that the idea that it is to a slave’s benefit to remain in bondage refers mainly to a slave who belongs to a kohen who has the right to enjoy the tithes that are given to a kohen and to members of his family. This also may apply to elderly slaves who are cared for by their masters; were they set free they would have to fend for themselves.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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