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Week 110 - Tuesday - 1 January 2002

BAVA BATRA: CHAPTER 10: MISHNAH 1

A plain deed - its witnesses are inside it. And a folded one - its witnesses are on the reverse. A plain one whose witnesses signed on its reverse, and a folded one whose witnesses signed inside it - both are invalid. R. Hanania b. Gamliel says, A folded one whose witnesses signed inside it is valid, because he can make it a plain one. Rabban Shimon ben Gamliel says: All is in accordance with the custom of the place.

Kehati

This chapter deals with the laws of deeds. We have indicated elsewhere (at the beginning of Gittin) that the term get is used not only for a deed of divorce, but also monetary deeds are referred to in the Mishnah as get, which simply means "a document." This mishnah deals with two types of documents whose physical appearance differs: the plain document and the folded document, or in the terminology of the Mishnah, a plain get or a folded get. For all documents, both deeds of divorce and monetary deeds, either took the usual form and were called plain get, or in a one specifically ordained by the Sages, the folded get. The folded deed (according to most commentators) was prepared as follows: from its beginning, they wrote a single line or a number of lines of the essence of the deed, and they folded the written part upon the part below and sewed them together. Another line or lines were written, and again the parchment was sewn down, and the operation was repeated until the last fold. Each such fold was known as a kesher, hence the Hebrew term for this type of deed - mekushar. The Gemara explains that the folded deed type was ordained by the Sages primarily for bills of divorce. The Sages instituted it for the (proverbially) hot-tempered priest who might in a fit of anger decide to divorce his wife. Unlike any other Jew, a priest may not marry a divorcee, including his own ex-wife. The Sages therefore instituted the folded deed which cannot easily be written quickly in order to allow time for the priest's temper to cool. As this type of deed was ordained for divorce, the Sages also instituted it for other deeds, for bills of indebtedness as well as for bills of sale so that one may choose the folded deed, so as not to differentiate between bills of divorce and other documents (B. B. 160b; Rashbam; Tosafot). This mishnah teaches that a folded deed also differs from a plain one in the manner in which the witnesses sign the deed.

A plain deed - i.e., any deed which is not a "folded deed," its witnesses are inside it - the witnesses sign inside it, i.e., at the end of the deed itself, and a folded one - whereas a folded deed (as explained in the introduction to the mishnah), its witnesses are on the reverse - the witnesses sign on the reverse, between one fold and the next (according to R. Huna in the Gemara). A plain one whose witnesses signed on its reverse - where the witnesses signed on the reverse side of the deed rather than at the bottom, and a folded one whose witnesses signed inside it - where the witnesses signed on the bottom of the deed rather than on the reverse side, both are invalid - for the deed was not executed in accordance with the formulation set down by the Sages.

R. Hanania b. Gamliel says, A folded one whose witnesses signed inside it is valid, because he can make it a plain one - because he can undo the stitching and make it into a plain deed; and even though there are spaces between the lines of text, one need not be concerned about that, as there are many unskilled scribes who leave considerable space between one line and another (Kidd. 49a, Rashi and Tosafot). There are those who deduce from this that a folded deed was written the same way as a plain deed, and that they did not leave a blank space between the lines but one line was folded down over another and the whole stitched down (Tosafot B.B. 160b; Ramban; Shitah Mekubetzet quoting Ran).

Rabban Shimon b. Gamliel says: Allis in accordance with the custom of the place - The Gemara explains that if in a certain place the custom was to use a plain deed and a person instructed a scribe to write him such a deed, and then the scribe wrote a folded deed or in a place where the custom was to use a folded deed and the scribe wrote a plain deed, all authorities agree that the deed is invalid for the instructor was particular that the scribe should prepare for him only the type of deed customarily used in that locality. The dispute between the Sages and Rabban Shimon ben Gamliel was only in such a place where both plain and folded deeds were customarily used, and where the person instructed the scribe to write a plain deed and instead he wrote a folded deed. In such a case, Rabban Shimon ben Gamliel holds that a person is not particular that the deed be plain, but merely indicates the mode of writing for he wants to reduce the scribe's labor and says that he will be satisfied with a plain deed. Nonetheless, if the scribe prepares a folded one he is better pleased since both are customarily used in that locality, and everything follows the custom of the locality. The Sages hold that such a deed is invalid as the person wanted a plain deed and nothing else. The halakhah follows the sages.

We have explained the form of a folded deed in accordance with most commentators, but Ramah explains that a folded deed (Hebrew. get mekushar, lit. a tied deed) was not folded but was literally tied with straps. According to him both types of deeds were written in the same manner, except that on a get mekushar there were straps attached to the top of the deed, each strap divided into two parts. After the deed was completed, it would be folded in half so that the end would be folded over to the beginning. It would then be folded again and again, if necessary. Finally, the two halves of each strap would be wrapped about the deed and tied together (Yad Ramah).

BAVA BATRA: CHAPTER 10: MISHNAH 2

A plain deed - its witnesses are two, and a folded one - three. A plain deed signed by one witness, or a folded one signed by two - both are invalid. If he wrote in it: A hundred zuz which are twenty selas, he has only twenty; a hundred zuz which are thirty selas, he has but a maneh. Silver zuzim that are..., and it was erased, it is not less than two. Silver selas that are..., and it was erased, it is not less than two. Darics that are..., and it was erased, it is not less than two. If above is written a maneh and below two hundred, above two hundred and below a maneh - all follows the bottom one. If so, why do they write the one above? That if a single letter of the bottom one is erased, he will learn from the one above.

Kehati

A plain deed - its witnesses are two - Only two witnesses need to sign the deed, and a folded one - three - but with a folded deed one needs at least three witnesses, for so the Sages instituted (Rashbam). A plain deed signed by witness, or a folded one by two - both are invalid - just as a plain deed with only a single witness is invalid by Torah law, a folded deed with only two witnesses is invalid as if by Torah law (Gemara; Rashbam). If he wrote in it - in a loan deed, A hundred zuz - That he had lent someone one hundred zuz, which are twenty selas - in fact, a hundred zuz are equal to twenty-five selas, he has only twenty - the borrower need only repay twenty selas, or, in other words, whichever figure is the lesser of the two, for we assume that the lender referred to a hundred debased zuz, which are only worth twenty selas. A hundred zuz which are thirty selas - if one wrote in the deed that he was lending a hundred zuz which are thirty selas, whereas in fact thirty selas are a hundred and twenty zuz, he has but a maneh - a hundred zuz which are twenty-five selas, for as we mentioned above, the borrower always pays the lesser amount, and we assume that he had in mind debased selas, thirty of which equal a hundred zuz. Silver zuzim that are... - If the phrase in the contract began with these words, and it was erased - and if the amount following the phrase was erased, it is not less than two - the amount is not less than two, as the minimum of the plural zuzim is two. Silver selas that are... - If the deed read that he was lending "Silver selas which are ..." and it - the amount - was erased, it is not less than two - The borrower must pay two selas. Darics - A gold coin, that are..., and it was erased - The amount in the deed was erased, it is not less than two - Darics (see Shek. 2:1); this mishnah teaches that the rule applies regardless of whether the coins involved are small or large (see Tosefot Yom Tov; Tiferet Yisrael).

If above is written a maneh - If at the top of the deed it states he lent a hundred zuz, and below - at the end when the details are repeated, it stated two hundred – zuz. Some interpret as follows: above - when the deed specified the amount lent, is written a maneh and below - but in specifying how much property the borrower pledged against the loan, it stated two hundred zuz (Hameiri), above two hundred and below a maneh - or the opposite, where the beginning of the deed spoke of two hundred zuz and the end of a hundred, all follows the bottom one - we follow the second figure whether smaller or greater. For we say that the lender retracted his first figure. Here, we do not follow the lesser of the two amounts as we did in the first part of this mishnah because the references to the different figures are separated far from one another and the one is not dependent on the other, as in the case of “A hundred zuz which are twenty selas" (Rambam, Hil. Malveh veLoveh 27:14).

If so, why do they write the one above - since everything is repeated anyway, and the former figure is not binding in any event? That if a single letter of the bottom one is erased, he will learn from the one above - If, however, there are two or more letters erased from the second reference, one does not deduce the amount from the first reference (Gemara).

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