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Week 110 - Wednesday - 2 January 2002

BAVA BATRA: CHAPTER 10: MISHNAH 3

One writes a divorce deed for a husband even if his wife is not with him; and the receipt for the wife - even if her husband is not with her; provided that they know them. And the husband pays the fee. One writes a deed for a borrower even if the lender is not with him; but one does not write a deed for a lender, unless the borrower is with him. And the borrower pays the fee. One writes a deed for a seller even if the buyer is not with him; but one does not write a deed for a buyer unless the seller is with him. And the buyer pays the fee.

Kehati

One writes a divorce deed for a husband even if his wife is not with him - A scribe may write a divorce deed for a man even if the man's wife is not present, and the witnesses then sign it, for a woman can be divorced even against her will and the divorce is solely at the discretion of the husband (we have already noted elsewhere that R. Gershom instituted that a man is not permitted to divorce his wife without her consent); and the receipt for the wife - one writes a receipt on behalf of the wife, which she gives her husband as proof that her ketubah has been paid, even if her husband is not with her - for the receipt benefits her husband, provided that they know them - provided that the scribe and the witnesses know both the husband and wife. Otherwise we are afraid lest the husband might ask the scribe to write a divorce deed using the name of another woman, whose husband's name is the same as his, and give the deed to her. Similarly with a receipt, we are afraid lest the woman should give it to a man whose wife's name is the same as her own. When, however, those involved know both husband and wife, we do not suspect that there might be another couple in the city whose names are the same as the names of this couple, for that is unlikely (Tosefot Yom Tov; Tiferet Yisrael). Some explain that one need not be concerned about this for the halakhah is that if there are two men called Joseph ben Shimon who live in the same city (i.e., their names and the names of their wives are the same), in such a case if one wished to divorce his wife, he must do so in the presence of the other (Gemara; Rambam, Hil. Gerushin 2:3)

And the husband pays the fee - to the scribe for writing the divorce deed and the receipt. The Gemara explains the reason; because it says in the Torah (Deut. 24:1), "He shall write for her a bill of divorcement and place it in her hand." As to paying for the receipt, the reason is because it is written for his benefit, to prevent his wife from coming back a second time to collect her ketubah. Our Sages, though, decreed that the wife should be responsible for and pay for the writing of the divorce deed, so that the husband should not leave it with the scribe, and delay the divorce proceedings. One writes a deed for a borrower even if the lender is not with him - One writes a loan agreement for a borrower and the witnesses sign it, even though the lender is not present, for it is to the lender's benefit, but one does not write a deed for a lender, unless the borrower is with him - for the deed imposes an obligation on the borrower. The Gemara (B. M. 13a) explains: When is this so? When the deed itself includes an act of acquisition, for as soon as the borrower made an act of acquisition, his property became mortgaged to the lender. If, however, the deed is one in which there was no immediate act of acquisition, then one may not write it unless the lender is present and he gives the deed to the lender in our presence. Here we fear lest the borrower should write a deed dated Nissan, but only takes out the loan in Tishrei (six months later). This would enable the lender to claim mortgaged property as from Nisan improperly since the deed reaches him only in Tishrei (Rambam Hil. Malveh veLoveh 23:5). And the borrower pays the fee - to the scribe for writing the deed.

One writes a deed for a seller - A deed signifying the sale of land, even if the buyer is not with him - for no obligation attaches to the buyer; here, too, this refers to a deed for which there is an immediate act of acquisition, as mentioned above in regard to a borrower, but one does not write a deed for a buyer, unless the seller is with him - the reason for this is that the deed imposes an obligation on the seller. Even though this case is obvious, it was taught here because of its immediate predecessor. Similarly, both cases of lender and borrower were taught. (See Tosafot Yom Tov who explains this law in a novel way). And the buyer pays the fee - to the scribe for writing the document. The Gemara explains that even the buyer of a poor quality field must pay the scribe's fee, for he benefits by acquiring something permanent, whereas money is frittered away, as people say: If you have bought (land) - you have gained, if you sold - you have lost.

BAVA BATRA: CHAPTER 10: MISHNAH 4

One does not write deeds of erusin or nisu'in, except with the knowledge of both of them. And the groom pays the fee. One does not write sharecropper and rental deeds, except with the knowledge of both of them. And the one who receives pays the fee. One does not write berurin or any action of the Bet Din, except with the knowledge of both of them. And both pay the fee. Rabban Shimon b. Gamliel says: Both write two, for this one for himself, and for this one for himself.

Kehati

One does not write deeds of erusin - betrothal, similar to the deeds of tenaim written nowadays, which detail how much this one will give his son and how much this one will give his daughter (Kidd. 9b; and commentators), or nisu'in - the ketubah and dowry documents, except with the knowledge of both of them - the fathers of the groom and bride (Rashbam), And the groom pays the fee - for writing the document to the scribe, for the groom acquires the woman. One does not write sharecropper - where one rents a field from another to work it, paying an agreed percentage of the crops, and rental deeds - where one rents a field from another to work it, paying a fixed amount of grain annually, whether the yield that year is large or small, except with the knowledge of both of them - The owner of the field and the sharecropper or renter. And the one who receives - the field to work it, pays the fee - to the scribe for writing the document, and even if he must clear the field for a year or two and will not receive any immediate profit from it (Gemara).

One does not write berurin - arbitration deeds where both litigants chose arbitrators for themselves and agree to abide by their decision, as we learn (San. 3:1), "Civil cases are heard by three. This one chooses ("borer") for himself one (judge) and this one chooses for himself one, and the two judges choose themselves another one." There are those who explain (Gemara) that these berurin refer to the pleas written by each side, in which they present their case for submission to the judges. Others explain that these documents include both the choice of judges and the claims of the litigants, so that they would read: "So-and-so chose for himself Judge A, and these are his claims, and so-and-so chose for himself Judge B, and these are his claims," or any action of the Bet Din - any certificate issued by a Bet Din, such as a shetar halata, a deed certifying that a creditor was awarded his debtor's goods in payment for a debt; or a shetar adrakhta, a deed authorizing a creditor, if they do not find goods at the debtor's premises, to seek out such goods and to seize them if he finds any, except with the knowledge of both of them - both parties. And both pay the fee - to the scribe, and here the mishnah refers to arbitration deeds (Rashbam).

Rabban Shimon b. Gamliel says: Both - There are those who have a reading of To both, meaning that for both litigants, they write two - arbitration deeds, for this one for himself, and for this one for himself - each litigant is given his own copy of the arbitration deed. Some explain that Rabban Shimon b. Gamliel refers only to those documents which contain the respective claims of the two, or that contain the names of the judges that were selected as well as the claims of the two litigants (see Tosefot Yom Tov). The Gemara explains his reason, because each might claim that he does not want there to be only one document as he does not want to have anything to do with his opponent. And the halakhah does not follow Rabban Shimon b. Gamliel (Rambam).

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