Bava Batra 172a (קעב.) — the Talmud in English

But nowadays, when we do not do so!

For now we do not do this; rather, we write an ordinary postdated document without stating that it is postdated, and we also write the date of repayment of the debt in the receipt without stating the date of the loan documented in the document. How, then, do we validate these documents? There is still concern that someone may commit fraud!

He said to him: The Sages instituted an ordinance,

that a receipt should be written as Rav Safra said, without a date.

Whoever does so—

does so;

whoever acts in accordance with his instruction acts properly.

Whoever does not do so—

he is the one who caused himself a loss.

A borrower who does not do this, but agrees to accept a receipt that contains the date of repayment without containing the date of the loan document, is the one who causes himself a loss.

The Gemara now cites another matter concerning writing a document before its proper time:

Rava bar Rav Sheila said to those scribes who wrote documents of acquisition,

to those who wrote documents of acquisition:

When you write documents of acquisition,

when you write a document attesting to the acquisition of land that was performed in your presence, and the act of acquisition was not effected by means of a document but through money, possession, or a kinyan sudar—write in the “date” of the document the date on which the acquisition took place, even though the date of the act of acquisition precedes the date on which the document is written.

This refers to a document of gift, in which the land is not conveyed to the recipient with a guarantee, so there is no concern that the recipient of the land might use this document to unlawfully take the land from purchasers who bought it before the date on which the document was written.

Or it may even refer to a document of sale with a guarantee. Nevertheless, there is no concern in writing as the date of the document the date of the acquisition, despite the fact that the date of the acquisition precedes the writing of the document. There is no concern that the purchaser might unlawfully take the land with this document from other purchasers who bought it from the seller during the interval between the acquisition of the land by this purchaser and the writing of his document. Indeed, he is entitled to take the land from them, even if they acquired it from the seller before his document was written, since he acquired the land before them, although they preceded him and bought it before the date on which his document was written. This is because the witnesses publicize the sale even when it is effected without a document, as explained above, in Hazoket HaBatim 41b. Therefore, there is no concern that he will unlawfully take the land from the other purchasers with this document.

And this is what Rava bar Sheila said to the writers of documents:

If you know the day on which you acquired it,

if you know the day on which the acquisition took place—

write

the date of the acquisition in the document, even though the date of the acquisition precedes the day on which the document is written, since there is concern that after the acquisition he may have given it to someone else unlawfully.

But if not,

if you do not know the date on which the acquisition took place—for example, if now, at the time of writing the document, it is the month of Kislev, and you do not remember on which day of the month of Tishrei the acquisition took place—you may not write in the document “the first of Marḥeshvan,” since the acquisition certainly already existed on that day. Rather,

write the day on which you are present,

write the day on which you are located at the time the document is written,

so that it should not appear to be false,

so that the matter should not appear to be a falsehood, since the first of Marḥeshvan is neither the day of the acquisition nor the day of the writing. Instead, they should write the day on which they are presently located.

All this applies specifically to documents of acquisition. But with regard to loan documents, if the loan preceded the writing of the document, only the date on which the document was written may be recorded. In the case of a loan, the borrower’s assets become subject to the debt only from the time the document is written, since loans are ordinarily made privately and the matter becomes public only when the document is written. As long as the matter has not become public, the assets do not become subject to the lien, because purchasers do not know to take precautions and be concerned. Therefore, the assets become subject to the lien only at the time the document is written, when the matter becomes public. If the date of the loan, which preceded the day on which the document was written, were written in the document, the lender could unlawfully collect by means of the document from purchasers who preceded the day on which the document was written.

Rav said to his scribes

to his writers,

and similarly Rav Huna said to his scribes

to his writers:

When you are located,

when you are present at the time the document is written,

in Shili,

in a place called Shili,

write

in the sale, gift, or loan document that you are writing

in Shili,

for example, in the following formulation: “In Shili we wrote what we saw in such-and-such a place.”

Even though the details were conveyed to you

even though the information was conveyed to you

in Hini,

which is near it.

When you are located

when you are present

in Hini,

in a place called Hini,

write

in the document that it was written

in Hini, even though the details were conveyed to you

even though the information was conveyed to you

in Shili,

which is near it.

Rava said: In the case of one who,

this lender,

holds a document

holding a loan document

for one hundred

zuz, and says

to the scribes:

Make them for me into two documents of fifty each,

write two documents for me, each for fifty zuz, so that if the borrower repays me fifty, I can tear up one document for fifty and will not need to write a receipt—

we do not make them for him.

We do not prepare two such documents for him, because a lender’s document may not be altered without the borrower’s knowledge.

Rava explains:

What is the reason

why do we not do so? Because

the Sages instituted a measure

the Sages instituted that the lender’s document should not be altered, since

it is satisfactory for the lender and satisfactory for the borrower,

through this ordinance!

It is satisfactory for the lender

that the document not be divided into two smaller documents—

so that

if the borrower wishes to repay only half the debt,

he will compel him to repay it,

the lender will compel the borrower to repay the remainder as well, since the borrower is concerned that he might lose the receipt, and the lender might then claim the entire debt from him with the document, requiring him to repay again even the portion he had already repaid.

And it is satisfactory for the borrower

that the document not be divided into two smaller documents—

so that his document will be impaired,

so that if the borrower repays half the debt, the document held by the lender will be deemed impaired, and once the document is impaired, the lender cannot collect by means of it without taking an oath, as explained in Ketubot 87a.

And Rava said

that the halakha is likewise in the opposite case:

In the case of one

that same lender

who holds two documents

holding two documents

of fifty each,

zuz,

and says

to the scribes:

Make them for me into one document for one hundred,

write one loan document for me for the total sum of one hundred zuz—

we do not make it for him.

The lender’s documents may not be altered without the borrower’s knowledge.

Since the Sages instituted that documents may not be altered without the knowledge of the lender and the borrower,

the Sages instituted a measure that is satisfactory for the lender and satisfactory for the borrower.

It is satisfactory for the lender

that the two debts not be written in a single document—

so that his document should not be impaired,

so that if the borrower pays only fifty zuz, he will have a separate document for the remaining debt, and the document will not be impaired by the payment, enabling him to collect with the document without taking an oath.

And it is satisfactory for the borrower

that the two debts not be written in a single document—

so that

if the borrower repays only half the debt,

he will not compel him to repay it,

the borrower will receive one of the debt documents back and tear it up, while one document will remain with the lender. He will not need to receive a receipt for the payment he made and be concerned that he might lose the receipt and the lender might collect from him also the portion of the debt he had already paid.

Rav Ashi said: In the case of one

that same lender

who holds a document

holding a loan document

for one hundred zuz, and says

to the scribes:

Make it for me into one document for fifty,

write me, in place of the document in my possession, a document for a total of fifty zuz, and tear up this document in my possession, since the borrower has already repaid me fifty zuz of the loan—

we do not make it for him.

The scribes do not write him a document—not according to the date of the earlier document, and certainly not according to the date on which they are currently located.

What is the reason?

Because

we say:

we are concerned: Perhaps

this

document in his possession

has in fact been repaid,

it has already been paid,

and he said to him

the borrower said to the lender at the time of repayment:

Give me my document,

return my debt document to me,

and he said to him,

the lender said to him:

It was lost to me,

I lost the document.

And he wrote him a receipt

and the lender wrote him a receipt for repayment of the debt.

If the scribes were to write him a new document for fifty zuz, the lender would take this document to the borrower

and produce this

and present this document to him

and say to him

to the borrower:

This

debt document

is a different one,

and the proof that it concerns a different debt is that the receipt states that he paid one hundred zuz, whereas the debt in this document is only fifty zuz. This would be especially so if they wrote in the document the date of the writing, which is after the date of repayment, since the lender could claim that after the repayment the borrower took another loan from him for fifty zuz.

Mishna:

Two brothers, one poor and one wealthy, whose father left them

as an inheritance

a bathhouse and an olive press,

in which olives are pressed for their oil.

If their father

made them

the bathhouse and the olive press

for rental,

in order to rent them to others—

the rental income is divided equally,

and the poor brother can compel the wealthy brother to rent them to others and divide the rental income between them.

But if their father

made them

the bathhouse and the olive press

for himself,

for the exclusive use of the members of his household —

the wealthy brother says to the poor one: Take slaves for yourself and have them bathe in the bathhouse; take olives for yourself and come and work them in the olive press.

You are not entitled to rent them out; rather, you must use them as our father used them. Consequently, the poor brother suffers on account of his poverty, since he cannot compel his brother to rent them to others. And although the halakha is that with regard to an item that is not subject to division, one partner may say to the other: Sell me your share, or I will sell you my share, here the matter is different, because the poor brother cannot say: Sell me your share, since he has nothing with which to purchase it.

If two people were in one city, one named Joseph son of Simeon and the other named Joseph son of Simeon,

as both had the same name—

they cannot produce a debt document against one another,

since either one can claim: “This document was in my possession, as I lent you the money recorded in it, and after you repaid me, I returned it to you.”

And another person cannot collect a debt from them by means of a document,

because each of them can claim: “It was the other Yosef ben Shimon who borrowed from you, not I.” Only if there are witnesses who testify that this particular person borrowed from him may he collect the debt from him. But one cannot bring proof from the document that he borrowed from him.

If among his documents a person found the document of Yosef ben

Shimon, marked as paid,

that is, a person borrowed money from two men named Yosef ben Shimon and gave them documents, and the borrower was found to possess a receipt stating that the document of Yosef ben Shimon had been paid,

the documents of both are considered paid,

and they cannot collect from him, since he possesses a receipt stating that he repaid the debt to Yosef ben Shimon. The Gemara in Bava Metzia [34a] raised an unresolved question: What is the law if a custodian whose animal was stolen said that he was prepared to pay the depositor for the animal, and afterward said that he was not prepared to pay? Is he considered to have withdrawn from his agreement, so that if the thief is found, the custodian does not receive the double payment, but the depositor receives it? Or perhaps he is not considered to have withdrawn from his agreement to pay for the animal, and the double payment belongs to him? The Gemara left the question unresolved. The Rif ruled [there, 18b in the pages of the Rif] that the custodian and the depositor divide the double payment. The Kuntres HaSefekot [general principle 1, section 3] asked: Why may the thief not dismiss each of them by saying, “I am not obligated to pay you the double payment,” just as we say here concerning two men named Yosef ben Shimon? In Terumat HaKeri [section 253], he answered that here, concerning two men named Yosef ben Shimon, there is no legal dispute between them; each one has a claim only against the defendant. Therefore, the defendant may dismiss each one by saying, “You are not the litigant entitled to bring this claim against me,” and consequently they cannot collect from him until they write a document authorizing one another to act on the other’s behalf. In the case of the double payment, by contrast, the uncertainty is between the depositor and the person to whom the animal was entrusted. Their law is that each receives half, and neither needs authorization from the other to receive his share. Each may claim his own share independently; therefore, the thief cannot dismiss them. In Shiurei Rabbi Shmuel [Bava Metzia 35b, note 268], it is written that the answer of Terumat HaKeri resolves the question of the Kuntres HaSefekot only if we follow the approach of the Babylonian Talmud. According to the Jerusalem Talmud, however, the difficulty still remains, because according to the Jerusalem Talmud the custodian acquires the double payment directly from the thief. If so, the legal claims are between the thief and the owner and between the thief and the custodian, and not between the owner and the custodian. Nevertheless, it is stated there that they divide the payment, and it is difficult to understand why the thief cannot dismiss each one of them. In Ein Yitzchak [part 2, Even HaEzer 66:31], he answered that, according to Tosafot [Bekhorot 49], who hold that when both parties are present they do not need authorization from one another, the matter can be explained as referring to a case in which both are present; therefore, the thief cannot dismiss them. [See also Or Sameach, Borrowed and Deposited Property 8:5, and similarly Hiddushei HaRim, Choshen Mishpat, part 4, section 295, subsection 15.]

What shall they do

if the two people named Yosef ben Shimon have a loan document or a deed of sale, so that they will not be confused with one another?

They should add the names of three generations,

writing three generations in the document, for example, Yosef ben Shimon ben Yaakov, so that there will be an identifying feature in the document indicating for whom it was written.

And if they have three generations named alike,

meaning that the names of all three generations are identical—

they should write a distinguishing mark,

for example, “Yosef ben Shimon the tall” or “Yosef ben Shimon the dark-skinned.”

And if they have distinguishing marks,

meaning that they are identical in their distinguishing features—if one of them is a koen,

they should write

in the document that he is a

koen.

Gemara:

There was a certain document that appeared before the court

a promissory note that was brought before the court

of Rav Huna, in which it was written:

the following was written in it:

“I, so-and-so, son of so-and-so,

borrowed one hundred zuz from you,”

and the document was held by a person who claimed: “The so-and-so son of so-and-so written in this document wrote it, signed it, and gave it to me, because I lent him the sum written in the document.” The reason he did not write my name was that he gave it to me; therefore, he wrote only “from you,” meaning that he borrowed from the person holding the document.