Bava Batra 172a — the Talmud in English

But nowadays, when we do not do so!

For now we do not do so; rather, we write an undated document without indicating that it is postdated, and we also write the date of repayment of the debt in the receipt without indicating the date of the loan of the document. How do we validate them? Surely there is concern of fraud!

He said to him: The Rabbis instituted an ordinance,

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

Whoever does—

does;

whoever acts according to his words acts properly.

Whoever does not do—

he is the one who caused his own loss.

A borrower who does not do so, but agrees to accept a receipt in which the date of repayment appears without the date of the loan document appearing in it—he is the one who causes his own loss.

The Gemara now brings another matter concerning the writing of a document not at its proper time:

Rava bar Rav Shila said to those writers of acquisition documents,

to those who write acquisition documents:

When you write acquisition documents,

when you write a document of proof concerning the acquisition of land that took place before you, and the act of acquisition was not performed by means of a document, but by money, possession, or an acquisition by means of a cloth—write in the “time” of the document the date on which the acquisition took place, even though the date of the act of acquisition precedes the time of the writing of the document.

And this is referring to a gift document, which does not give him the land with a guarantee, so there is no concern lest the recipient of the land come to take the land improperly, by means of this document, from purchasers who purchased this land before the time of the writing of the document.

Or it is referring even to a sale document with a guarantee, and nevertheless there is no concern in writing the time of the document as the date of the acquisition, despite the fact that the date of the acquisition precedes the writing of the document. For there is no concern lest the purchaser take the land improperly, by means of this document, from other purchasers who purchased it from the seller during the period between the transfer of the land to him and the writing of the document. Indeed, he is entitled to take the land from them, even if they took it from the seller before the writing of his document, since he purchased the land before them, even though they preceded him and purchased it before the time of the writing of the document, because the witnesses publicize the sale even if it is performed without a document, as explained above, in chapter Hazakath Ha-Battim 41b. And there is no concern that he will improperly take it from the other purchasers by means of this document.

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

If you know the day on which you acquired,

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

write

the date of the acquisition in the document, even though the time of the acquisition precedes the day of the writing of the document, since there is concern lest after the acquisition he gave it to another improperly.

But if not,

if you do not know the date on which the acquisition took place—for example, now, at the time of writing the document, they are in the month of Kislev and 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 Marheshvan” [on which day the acquisition certainly already existed], but

write the day on which you are standing,

write the day on which you are standing at the time of writing the document,

so that it not appear as falsehood,

so that the matter not appear as falsehood, since the first of Marheshvan is neither the day of the acquisition nor the day of the writing; rather, let them write the day on which they are now standing.

And all this was said specifically concerning acquisition documents. But concerning loan documents, if the loan preceded the writing of the document, they write only the date of the writing of the document. For in a loan, the borrower’s properties become subject to the debt only from the time of the writing of the document, since the practice is to borrow secretly and the matter becomes public only with the writing of the document. And as long as the matter has not become public, the properties do not become subject to the debt, because the purchasers do not know to be careful and concerned. Therefore, only at the time of the writing of the document, when the matter becomes public, do the properties become subject to the debt. And if he writes in the document the date of the loan, which preceded the day of the writing of the document, then he could collect by means of the document from purchasers who preceded the day of the writing of the document improperly.

Rav said to his scribes

to his writers,

and likewise Rav Huna said to his scribes

to his writers:

When you are staying

when you are present at the time of writing the document

in Shili,

in the place called Shili,

write

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

in Shili,

such as this wording: “In Shili we wrote what we saw in such-and-such a place.”

And even though the matter was conveyed to you

and even though the matter was conveyed to you

in Hini,

which is near it.

When you are staying

when you are present

in Hini

in the place called Hini,

write

in the document that is being written

in Hini, and even though the matter was conveyed to you

and even though the matter was conveyed to you

in Shili,

which is near it.

Rava said: This one,

this lender,

who holds a document

who holds a loan document in his hand

for one hundred

zuz, and said

to the scribes:

Make for me two of fifty-five,

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

we do not make them for him,

we do not make two such documents for him, because we do not alter the lender’s document without the borrower’s knowledge.

And Rava explains:

What is the reason

why do we not do so? For

the Rabbis enacted a matter

the Sages instituted that they should not alter the lender’s document, since

it is pleasing to the lender and it is pleasing to the borrower,

through this ordinance!

It is pleasing to the lender

that they not divide the document 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 him the remainder, since the borrower is concerned lest he lose the receipt and the lender claim the entire debt from him by means of the document, and he will have to repay again even the portion that he already repaid.

And it is pleasing to the borrower

that they not divide the document into two smaller documents—

so that his document become impaired,

so that if the borrower repays half the debt, the document in the lender’s hand will be considered impaired, and after the document is impaired, the lender cannot collect by means of the document without an oath, as explained in Ketubot 87a.

And Rava said,

that the halakha is likewise in the opposite case:

This one

that same lender

who holds two documents

who holds two documents in his hand

of fifty each

zuz,

and said

to the scribes:

Make them for me into one of one hundred,

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

we do not make it for him,

we do not alter the lender’s documents without the borrower’s knowledge.

For through this, that the Sages instituted that the documents not be altered without the knowledge of the lender and the borrower,

the Rabbis enacted a matter that is pleasing to the lender and pleasing to the borrower.

It is pleasing to the lender

that they not write the two debts in one document—

so that they not impair his document,

so that if the borrower pays only fifty zuz, he will have a separate document for the remainder of the debt, and the document will not be impaired through the payment, and he will be able to collect by means of the document without an oath.

And it is pleasing to the borrower

that they not write the two debts in one document—

so that

if the borrower repays only half the debt,

he will not compel him to repay it,

the borrower will receive back one of the debt documents and tear it up, while one document will remain in the lender’s hand, and he will not need to receive a receipt for the payment that he paid, nor fear lest he lose the receipt and the lender collect from him also the portion of the debt that he already paid.

Rav Ashi said: This one

that same lender

who holds a document

who holds a loan document in his hand

for one hundred zuz, and said

to the scribes:

Make it for me into one of fifty,

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

we do not make it for him

the scribes do not write a document for him, neither according to the date of the previous document, and all the more so not according to the date on which they are now.

What is the reason?

For

we say:

we are concerned: perhaps

this

this document in his hand

was fully paid,

it has 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 for me,

the document was lost for me.

And he wrote him a receipt

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

And if the scribes write for him a new document for a sum of fifty zuz, the lender will take this document to the borrower

and produce this

and produce this document for him

and say to him

to the borrower:

This

debt document

is another one,

and the proof that it concerns another debt is that the receipt states that he paid a sum of one hundred zuz, whereas in this document the debt is only fifty zuz. In particular, if they write the date of the writing in the document, which is after the date of repayment, the lender could claim that after the repayment the borrower took another loan from him in the amount of fifty zuz.

Mishna:

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

as an inheritance

a bathhouse and an olive press

in which olives are pressed for oil.

If their father

made them

the bathhouse and the olive press

for rental

in order to rent them to others—

the rental is divided equally,

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

But if their father

made them

the bathhouse and the olive press

for himself,

for the use of the members of his household בלבד —

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

and you are not entitled to rent them out, but must use them in the manner in which our father used them. Consequently, the poor brother suffers through his poverty, since he cannot compel his brother to rent them to others. And even though the halakha is that concerning an object that is not subject to division, one partner can say to the other: Sell me your share, or I will sell you my share, here the matter is different, for the poor brother cannot say: Sell me your share, because he has nothing with which to purchase it.

Two people who were in one city, one named Joseph ben Shimon and the other named Joseph ben Shimon

both having the same name—

they cannot produce this debt document against one another,

since each one can claim: This document was in my possession, for I lent you against it, and after you repaid me, I returned it to your possession.

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 should two men named Yosef ben

Shimon do with a loan document or a sale document so that they will not be confused with one another?

They should write three generations,

that is, they should write three generations in the document, such as “Yosef ben Shimon ben Yaakov,” so that the document will contain an identifying feature showing for whom it was written.

And if the three generations have the same names,

meaning that the names of all three generations are identical,

they should write an identifying mark,

such as “Yosef ben Shimon the tall” or “Yosef ben Shimon the dark-skinned.”

And if they have distinguishing features,

meaning that they are identical in their distinguishing features—if one of them was a kohen, a man of the priestly family who had the special status of serving in the Temple,

they should write

in the document that he is a

kohen.

Gemara: The talmudic discussion of the Mishna.

A certain document appeared before the court

that is, a debt document was presented before the court

of Rav Huna, in which it was written

that it stated as follows:

“I, so-and-so son of so-and-so,

borrowed one hundred dinars 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 amount written in the document.” The reason he did not write my name was that he gave the document to me; therefore, he wrote only “from you,” meaning that he borrowed from the person holding the document.