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Week 110 - Thursday - 3 January 2002

BAVA BATRA: CHAPTER 10: MISHNAH 5

One who paid part of his debt and gave his deed to a third party, and said to him: If I do not give it to you from today until such-and-such a day, give him his deed; if the date arrived and he did not give - R. Yose says: He may give; R. Yehudah says: He may not give.

Kehati

One who paid part of his debt - that he owed in accordance with a bill of debt in the creditor's possession, and gave his deed - and the creditor handed the deed to a third party - for they did not want to write a receipt for the amount paid and trusted the third party to keep track of the outstanding debt, and said to him - the debtor said to the third party: If I do not give it to you from today until such and such a day - If I do not pay the balance due on this note by a specified date, give him his deed - Return the deed to the creditor, so that he will be able to collect the entire amount in the note, and I will not deduct the amount I paid until now; if the date arrived and he did not give - the debtor did not give the balance of the debt to the third party, R. Yose says: He may give - The third party may return the note to the creditor, as agreed by the debtor;

R. Yehudah says: He may not give - the note to the creditor. The Gemara explains the dispute. The debtor's obligation was an asmakhta, i.e., the debtor relies (somekh) on being able to pay his debt by the due date, so that he will not need to pay out the entire amount (Rashbam; Bartenura); or the debtor wishes the creditor to rely (yismakh) on his promise that the debt would be paid in time, but he never thought that he would have to pay a second time what he had already paid. For he thought that the debtor would certainly fulfill his condition, and such a condition made in order to encourage somebody else to rely on his statement is called an asmakhta (Rashi; Tosafot; Rosh). The Tannaim in our mishnah disagree: R. Yose holds that an asmakhta obligation is binding, therefore the third party must return the note to the creditor, as the debtor agreed; and even though there was no consideration given by the creditor in return for this added amount, it is as if he gave the added amount as a gift, so that the entire note remains valid (Hameiri; Tosafot R. Akiva Eiger). R. Yehudah, though, holds that an asmakhta obligation is not binding, for the debtor really had no intention to forfeit what he had paid, and had only made that stipulation because he thought that he would be able to pay on time. Had he known that he would not be able to pay timeously he would not have obligated himself. Or, he made his offer to placate the creditor, as we mentioned above. The third party should therefore not return the note to the creditor. The halakhah follows R. Yehudah.

BAVA BATRA: CHAPTER 10: MISHNAH 6

One whose bill of debt was erased, witnesses testify about it, and he comes before a Bet Din and they make an attestation for him: So-and-so, the son of so-and-so, his note was erased on such-and-such a day, and so-and-so and so-and-so are his witnesses. One who paid part of his debt - R. Yehudah says, Let him exchange; R. Yose says, Let him write a receipt. R. Yehudah said, It means this one must preserve his receipt against mice. R. Yose said to him, This is good for him, and the power of this one will not be weakened.

Kehati

One whose bill of debt was erased - If, for example, water fell on it, and witnesses testify about it - witnesses who know exactly what was written in it, when it was written, and that this is the note which was held by the creditor, and he comes before a Bet Din and they make an attestation for him - they validate the note, and this is the formula they use: So-and-so, the son of so-and-so, his note - for such and-such an amount was erased - and the date of this note was on such-and-such a day, and so-and-so and so-and-so are his witnesses - Some have a version of our mishnah that reads One whose note was erased, sets up witnesses for himself. They explain that this refers to a case where the note was not entirely erased and the writing is still readable, but the owner of the note is afraid that it will disappear completely. In such a case the mishnah teaches that he brings witnesses who will read the note and know what is written in it and who the original witnesses were. These new witnesses then come before the Bet Din and testify that the creditor had with him a note that had begun to fade and that they recognize the signatures, and on the basis of their testimony the Bet Din attests the contents of the note (Rabbeinu Gershom; Tur quoting R. Yitzhak).

So, too, Rambam writes: "One whose bill of debt was worn and is about to be erased, sets up witnesses on it, and comes to the Bet Din, and they attest it for him. How is this bill of debt attested? They write another bill: We the Bet Din consisting of so-and so, so-and-so, and so-and-so: so-and-so the son of a so-and-so produced a bill before us that had been erased and its date is such-and-such, and so-and-so and so-and-so are his witnesses" (Hil. Malveh veLoveh 23:12-13; see Maggid Mishneh ibid. And see baraita in the Gemara for the formula of attestation). Others explain that even if the note was erased completely, since the witnesses know what was written in it when it was written, and that this is the bill held against so-and-so and they can produce an attestation before a Bet Din which then writes what was contained in the bill, and its members sign their names at the end (Rashbam; Bartenura). Tosafot, however, writes that the attestation is done by the court itself, and not as explained by Rashbam, that the witnesses do so (see Tur 4]; and see Bet Yosef, that there is no dispute about the law itself, and that according to all if the witnesses knew when the note was written and what was written in it, the Bet Din arranges for its attestation. The phrase "sets up witnesses," though, caused Rabbi Yitzhak, Rosh, and Rambam to explain the mishnah as referring to a case where the bill was not erased entirely).

One who paid part of his debt - he owed a debt to his neighbor who held a bill for it and the creditor was not willing to have the note left with a third party (as in the case in mishnah 5) R. Yehudah says,: Let him exchange - the old bill for a new one with the new amount owing indicated on it, and let him destroy the old note. R. Yose says, Let him write - the lender for the borrower, a receipt - for the amount paid. R. Yehudah said, It means this one - the borrower, must preserve his receipt against mice - for if the mice eat the receipt, the lender will be able to collect the whole amount written in his note; R. Yose said to him - to R. Yehudah, This is good for him - It is proper for the borrower to protect the receipt, to pressure him to pay the balance (Tiferet Yisrael; Rashbam and Bartenura, however, refer "to him" to the lender; and see Melekhet Shelomo's quote from the novellae of Rashba), and the power of this one - the lender - will not be weakened - by writing a new bill. For the date of the new bill would be that on which the partial payment was made, and the lender would no longer have a claim to any property sold by the borrower between the dates of the first and second bills. The Gemara quotes: "R. Huna said in the name of Rav: The halakhah follows neither R. Yehudah nor R. Yose, but the Bet Din tear up the bill and write him a bill dated as of the first date."

A baraita in the Gemara states, however, that even according to R. Yehudah they write another deed dated with the first date, but R. Yehudah holds that they do not need to go to a Bet Din for such a matter, and it is enough for witnesses to tear up the first bill and to write another one. Therefore, Rav says that in this matter the halakhah does not follow R. Yehudah, but that a Bet Din must write a new note for the lender. As to R. Yose's statement, and the power of this one (the lender) will not be weakened, (and will be able to collect on his lien from the date of the first deed as we explained above), that is because he thought that according to R. Yehudah one writes the second note from the later date.

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