Bava Batra 169a — the Talmud in English

Rabban Shimon ben Gamliel says: even deeds of sale and purchase may not be written

even without liability, because we are concerned lest he sold the field back to the seller and did not write him another deed of sale, but merely returned to him the same deed that he claims was lost, and it will be explained below in the Gemara that Rabban Shimon ben Gamliel holds that “letters are acquired through delivery”: the delivery of the deed itself constitutes an act of acquisition for acquiring what is written in it, and there is no need for an additional act of acquisition.

And so Rabban Shimon ben Gamliel would also say: one who gives a gift to his fellow, and he returned to him the deed

of that gift,

his gift has returned

to the giver, because letters are acquired through delivery.

And the Sages say: his gift remains in force,

because letters are not acquired through delivery, and the giver did not acquire it merely through the return of the deed, unless he performed a complete act of acquisition or the purchaser wrote him a new deed.

The Master said:

but deeds of sale and purchase may be written,

except for the liability contained in it.

And the Gemara asks:

What is the reason

that they may not also write the liability?

And the Gemara explains:

Rav Safra said: because

we are concerned lest he did not lose the deed at all, and

two deeds may not be written for one field.

And if we write him an additional ordinary deed with liability, it will turn out that he has in his possession two deeds carrying liability.

And the reason that two deeds carrying liability may not be written for the same field is

perhaps a creditor will go and seize this one,

perhaps the seller’s creditor will come and seize the field from him,

and this one will go and produce one,

and then the purchaser from whom it was seized will produce his one deed,

and seize property from purchasers,

he will seize through it one field from purchasers of the seller who bought it after him, since he has liability from the seller for his field,

and say to the creditor,

and he will make a collusion with the creditor who seized it from him and say to him:

“Wait for me, so that I may remain in it.”

Wait several more years, and in the meantime let me remain undisturbed in the field that you seek to seize from me, until the matter becomes established.

“And afterward, come and seize it from me.”

Then come again and seize the field from me.

And he will produce the other one.

Then he will produce the second deed that he has,

and afterward go and seize other purchasers’ property,

and seize again an additional field from the purchasers of the seller who bought their fields after him.

And therefore liability is not written in the second deed, for then he cannot seize twice from the seller’s purchasers.

And the Gemara asks:

And since we tear up the creditor’s deed,

since the court tears up the creditor’s promissory note when he seizes the field the first time, then

with what will he seize it again!?

How will he seize again from the purchaser when he has no promissory note in his possession?

And if you would say that we do not tear it up,

if you would say that they did not tear up the promissory note the first time, this is not possible, because the procedure for collecting a debt is as follows:

a. The creditor comes to court to demand that the borrower repay the debt. The court summons the borrower to judgment. If he does not come, the court writes the creditor a shtar tirpa, by which he has the right to go and search for the borrower’s real estate, or for real estate that was purchased from him after the loan, in order to exercise his right to collect the debt.

b. When he finds that real estate, he approaches the court of that city and shows them the shtar tirpa, and they hand those properties over to him and write him a shtar adrakhta, by which he can exercise control over and tread upon the borrower’s assets in order to collect his debt from them.

c. Afterward, the court assesses the land in relation to the debt and writes him a shtar shuma, stating that he received the land as though it were worth such and such [so that when the borrower has money, he can redeem it according to that valuation].

But Rav Naḥman said:

every deed of

seizure

in which it is not written

that the court did not write in it

“we tore up the creditor’s deed,”

that we tore up the creditor’s promissory note,

is not a deed of seizure!

For we are concerned lest he go to another court with this promissory note and have another deed of seizure made.

And every

deed of

authorization

in which it is not written

“we tore up the deed of seizure” is not an authorization!

Perhaps through the deed of seizure he will have another deed of authorization made.

And every

deed of

appraisal

in which it is not written

Perhaps he will seize additional fields by means of the authorization to take possession. Thus, the creditor’s document is torn up when he seizes property, so how is it possible for him to seize twice?

“we tore up the authorization” is not an appraisal!

Perhaps he will seize additional fields through the authorization. It follows that they tear up the creditor’s deed when he seizes, so how is it possible for him to seize twice?

And the Gemara explains:

No, it is necessary: he comes by virtue of his ancestors.

The concern is not that a creditor may seize twice, but that a person may come to the purchaser and claim, on the basis of witnesses, that this field belonged to his ancestors from time immemorial, and that the seller stole it from his ancestors and sold it to this purchaser. The court will remove the field from him. He will then return and seize property from the seller’s purchasers on the basis of the one deed. He will then make the above-mentioned collusion with the dispossessed claimant, who will allow him to remain in the field for several more years; afterward he will again come with witnesses to claim that it was stolen from his ancestors, and they will remove it from him, and he will again seize property from the purchasers through the second deed in his possession. Therefore two deeds may not be written for the same field.

Rav Aḥa of Difti said to Ravina: Why does he need to say to the creditor,

why does the purchaser need to make a collusion with the creditor [that is, with the dispossessed claimant] and say to him

“Wait for me in this land, and I will remain in it,”

that he should wait for him several years!?

Let it follow for him: since he holds two deeds, he seizes and then seizes again.

He can immediately, on that same day, seize twice through the two deeds in his possession!?

And the Gemara explains:

If so, many

lawsuits would be brought against him.

If he seizes at once from two purchasers, he will turn both of them against him, until they discover the fraud.

And the Gemara discusses the words of the beraita: Why is it necessary to write in the second deed “except for the liability contained in it”?

And let us write for this one a valid deed,

could we not write for the one who claims that his deed was lost a complete deed with liability? And if it is because of the concern that he will collect twice from the seller, there is a solution for this:

and let us write a receipt for the seller,

let us write, alongside it, a receipt for the seller, and let it say in it:

“All my deeds that emerge concerning this land

all my deeds of sale that emerge concerning this field

are invalid, except for the one that emerges on this date,”

apart from this deed, which is now written at a certain time in place of the deed that was lost. And if the purchaser produces the lost deed, the seller will show him the receipt that invalidates it!

And the Gemara explains:

The Sages said it before Rav Pappa,

the Sages wished to state an answer to this before Rav Pappa,

and some say

there are those who say that they wished to state the answer

before Rav Ashi: This indicates that

from here there is proof that

a receipt may not be written!

A creditor who claims that his deed was lost has forfeited the debt, even if the borrower admits the loan. And we do not say that the borrower should pay the debt and the creditor should write him a receipt stating that he paid the debt, because it is not proper that the borrower should have to guard the receipt constantly from mice, for if they eat it, the creditor will produce his deed and collect from him again.

The same law applies to a deed of sale: when the purchaser claims that his deed was lost, a new deed with liability may not be written for him on the basis of the receipt that he will give the seller, since then the seller will have to guard the receipt constantly.