Bava Batra 169a (קסט.) — the Talmud in English

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

even without a guarantee of liability, because we are concerned that perhaps 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 “deeds are acquired through delivery”: The delivery of the deed itself constitutes an act of acquisition transferring ownership of that which is written in it, and no additional act of acquisition is necessary.

And Rabban Shimon ben Gamliel would likewise say: If one who gives a gift to another returns to him the deed

of that gift,

his gift has been returned

to the giver, because deeds are acquired through delivery.

And the Sages say: His gift remains in force,

because deeds are not acquired through delivery, and the giver does not acquire the property merely through the return of the deed, unless he performs a complete act of acquisition or the buyer writes him a new deed.

The Master said:

But deeds of sale and purchase may be written,

except for the guarantee of liability contained in them.

And the Gemara asks:

What is the reason

that the guarantee may not be written as well?

The Gemara explains:

Rav Safra said: Because

we are concerned that perhaps the deed was not lost at all, and

two deeds may not be written for one field.

If we write him an additional ordinary deed with a guarantee of liability, it will turn out that he has two deeds carrying such a guarantee.

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

lest a creditor come and seize this one,

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

and this one go and produce one

and then the buyer from whom the field was seized produce his one deed,

and seize property from purchasers,

using it to seize a field from purchasers of the seller who bought it after him, since he has a guarantee of liability for his field from the seller,

and say to the creditor,

and he will conspire with the creditor who seized the field 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 peacefully 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 produces the other one.

Then he will produce the second deed in his possession,

and afterward go and seize other purchasers’ property,

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

Therefore, no guarantee of liability is written in the second deed, in which case he cannot seize twice from the seller’s purchasers.

The Gemara asks:

And once we tear up the creditor’s deed,

since the court tears up the creditor’s loan document when he seizes the field the first time,

with what can he seize it again!?

How can he again seize it from the purchaser when he no longer has a loan document?

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

if you were to say that they did not tear up the loan document the first time, that cannot be so, because the procedure for collecting a debt is as follows:

a. The creditor comes to the court to demand that the debtor repay the debt. The court summons the debtor to court. If he does not come, the court writes the creditor a document of authorization to seize property, which grants him the right to search for the debtor’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, shows them the document of authorization to seize property, and they transfer that property into his possession. They write him a document of authorization to take possession, by which he may exercise control over and tread upon the debtor’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 document of appraisal, stating that he received the land as though it were worth such and such an amount [so that when the debtor has money, he can redeem it at that valuation].

But Rav Naḥman said:

Any document of authorization to seize property

in which it is not written

“We tore up the creditor’s deed,”

in which the court did not write

“We tore up the creditor’s deed,”

that we tore up the creditor’s document,

is not a valid document of authorization to seize property!

For we are concerned that perhaps he will go to another court with this loan document and have another document of authorization to seize property prepared.

And any

document of authorization to take possession

in which it is not written

“We tore up the document of authorization to seize property” is not a valid authorization to take possession!

Perhaps he will use the document of authorization to seize property to have another authorization to take possession prepared.

Perhaps he will use the tereifa to have another adrakhta written.

And any

document of appraisal

in which it is not written

“We tore up the authorization to take possession” is not a valid document of appraisal!

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 adrakhta” is not a shuma!

Perhaps he will use the adrakhta to seize additional fields. Thus, the lender’s document is torn up when he seizes property, so how can it be possible for him to seize property twice?

The Gemara explains:

No, it is necessary in a case where he comes by virtue of his ancestors.

The concern is not that a creditor might seize twice. Rather, it is that a person might come to the purchaser and claim, on the basis of witnesses, that this field had belonged to his ancestors from time immemorial, that the seller had stolen it from his ancestors and sold it to this purchaser. The court would remove the field from the purchaser. He would then return and seize property from the seller’s purchasers on the basis of the first deed. He would then make the conspiracy described above with the dispossessed owner: He would allow him to remain in the field for several more years, and afterward he would again come with witnesses to claim that it had been stolen from his ancestors. They would remove it from him, and he would again seize property from purchasers by means of 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 must the purchaser conspire with the creditor [that is, with the dispossessed owner] and say to him,

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

that he should wait for him several years,

“It follows that, since he holds two deeds, he can seize and then seize again.”

He can seize twice immediately, on that very day, by means of the two deeds in his possession!?

The Gemara explains:

If so, he would have many

litigants against him.

If he seized from two purchasers at once, he would provoke both of them against him, until they discovered the deception.

The Gemara discusses the statement of the beraita: Why must one write in the second deed, “except for the guarantee of liability contained in it”?

Let him write this as a valid deed,

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

And let him write a receipt for the seller.

Let them write, at the same time, a receipt for the seller, stating:

“All deeds that emerge concerning this land

all 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 on a certain date in place of the lost deed. And if the purchaser produces the lost deed, the seller will show him the receipt that invalidates it!

The Gemara explains:

The Sages said before Rav Pappa,

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

and some say

that they wished to propose the answer

before Rav Ashi: This proves that

from here there is proof that

a receipt may not be written!

A creditor who claims that his document was lost forfeits the debt, even if the debtor admits the loan. We do not say that the debtor should pay the debt and that the creditor should write him a receipt stating that he paid the debt, because it is improper for the debtor to have to guard the receipt constantly against mice, since if they eat it, the creditor could produce his document and collect from him again.

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