Bava Batra 173a (קעג.) — the Talmud in English

It is explained in the Mishna that we are not concerned that the document may have been lost. And even Abaye, who holds that at times we are concerned about a lost document, concedes that we are not concerned that the document fell from someone else who has the same name as the person currently holding the document. In this case, the person holding the document found precisely a document bearing a name identical to his own.

This is difficult.

But rather, this

is referring to the beraita that disagrees with our Mishna,

as it was taught: Just as

the two Yosef ben Shimon’s

cannot produce this promissory note against one another,

so they cannot

produce

a promissory note

against

others,

because we are concerned that the document belongs to the second Yosef ben Shimon.

With regard to what do they disagree?

What is the dispute between the tannaim of the beraita and the Mishna? Surely the tannaim do not disagree about whether we are concerned that the document fell from the other person who has precisely the same name, and that he happened to find the document. If so, what is the basis of their dispute?

And we explain:

They disagree with regard to

the documents, whether

documents are acquired through delivery.

They disagree as follows: Although we are not concerned that the document was lost in this manner, we are concerned that the person holding it received the document through an act of acquisition by delivery from the other person, and that the document was not written for him.

And this is the dispute:

The tanna of our Mishna holds: Documents

are

acquired through delivery,

and it is unnecessary to write a bill of sale for the document that he sells to him. Rather, once he delivers the promissory note to him so that he may acquire it, the debtor becomes obligated to pay it to the recipient of the document, and the lien applies to him just as it had applied to the creditor. Therefore, even if the document was written for the other person, and the other person gave it to him, the document now belongs to him, because he acquired it through delivery.

And the debtor has no choice but to pay the person in whose possession the document is.

But the other tanna

of the beraita

holds that

documents

are not acquired through delivery

alone, but only with the addition of a bill of sale for the document that he sells to him. Therefore, although we are not concerned that the document was lost, nevertheless it is possible that this document was written for the other person and was delivered to him merely as a deposit. And he cannot collect it—for the document does not belong to him, since documents are not acquired through delivery alone, but only by means of an additional document. And if the other person comes and makes a claim against him, the debtor will say to him that he does not pay him, since the document is not in his possession.

However, if one of them gives the other written authorization to collect his debts on his behalf, the debtor cannot reject the authorized agent and say that he is indebted to the other person, because the document proves that he owes one of them, and the authorized agent has the right to collect both debts.

And if you wish, say

that one can offer another explanation of the dispute between the Mishna and the beraita:

Everyone

agrees that

documents

are

acquired through delivery,

without a bill of sale, as the halakha was ruled above [77a].

And here they disagree with regard to whether it is necessary

to bring proof.

They disagree in the dispute between Abaye and Rava as to whether proof and witnesses are required that the document was delivered as an acquisition and not as a deposit.

The tanna of our Mishna holds: It is unnecessary to bring proof

that the document was delivered as a complete acquisition. Therefore, even if he received the document through delivery from another person who has the same name, the document now belongs to him, and the debtor is obligated to pay him the debt recorded in the document.

But the other tanna holds: It is necessary to bring proof

and witnesses concerning the delivery of the document, that it was not delivered as a deposit. As long as he does not bring witnesses to this effect, the debtor may reject him and say that the document was written for the other person and was delivered to him only as a deposit.

For we find that Abaye and Rava disagreed about this,

as it was stated: Documents are acquired through delivery.

Abaye said: It is necessary to bring proof

that the document was delivered to him as an act of acquisition and not as a deposit.

And Rava said: It is unnecessary to bring proof,

but we establish the document in the presumptive ownership of the person holding it.

Abaye said: From where do I derive this?

From where do I learn that one must bring witnesses that the other person transferred the document to him and did not deliver it to him as a deposit?

As it was taught

in a beraita:

If one of the brothers has a promissory note

belonging to their father

emerge from beneath his hand,

and he claims that the brothers gave it to him, while they claim that he seized the document from them—

he must bring proof.

Is it not the case that the same applies to others

—to other people, and not only to one of the brothers? Rather, anyone from whose possession a document belonging to another person emerges must bring proof that the other person transferred the document to him.

And Rava said:

No proof can be brought from the beraita, which discusses brothers, to the case of one holding another person’s document, because

the case of

the

brothers

is different, since the person holding the document must bring proof to his brothers because it is common for brothers

to take things from one another,

since they are regularly found in one place. This is not the case with one holding another person’s promissory note, where we are not concerned that he took it from the other person without an act of acquisition.

Some say

that the statements were made in the opposite order:

Rava said: From where do I derive this?

From where do I learn that one need not bring witnesses that the other person transferred the document to him, and that we are not concerned that he delivered it to him as a deposit?

As it was taught

in a beraita:

If one of the brothers has a promissory note

belonging to their father

emerge from beneath his hand,

and he claims that the brothers gave it to him, while they claim that he seized the document from them—

he must bring proof.

And from the fact that the beraita speaks specifically of brothers, it follows that only with regard to

brothers

must he bring proof that they delivered the document to him so that he would acquire it, since it is common for brothers

to take things from one another,

meaning that they take things from one another.

But with regard to

with regard to

others,

where there is no such concern,

he need not

bring proof that the document was delivered to him as an acquisition and not as a deposit.

And Abaye

disagrees with Rava and holds that this inference cannot be drawn from the beraita. Rather, even when one received a document from others, he must bring proof that it was delivered to him as an acquisition and not as a deposit. The reason the beraita states the case of

brothers

is that

it was necessary for it

to teach this novel point.

It might have entered your mind to say: Since

it is common for brothers

to take things from one another,

meaning that they take things from one another,

I might say

that

they are especially vigilant,

each one being wary of his brother,

and need not bring proof

that the document was delivered to him as an acquisition.

Therefore it teaches us

that even brothers must bring proof concerning a document that came into their possession.

It has been explained in the Gemara that the two tannaim of the Mishna and the beraita who disagreed over whether the two Yosef ben Shimon’s may produce a promissory note against others disagreed either over whether documents are acquired through delivery, or over the dispute between Abaye and Rava as to whether one must bring proof that the document was delivered to him as an acquisition and not as a deposit.

And the Gemara cites a third tanna who disagrees with both of these tannaim.

But rather, with regard to that which was taught

in a beraita:

Just as they may produce

the two Yosef ben Shimon’s

a promissory note against others,

so they may produce

a promissory note

against one another.

And this tanna disagrees with the tannaim cited above, who hold that they cannot produce a promissory note against one another.

With regard to what do they disagree?

And we explain: They disagree about this matter:

They disagree over whether a document may be written for the debtor even when the creditor is not present.

The tanna of our Mishna holds: A document may be written for the debtor even when the creditor is not present.

And since this is so, in the case of two Yosef ben Shimon’s there is concern about fraud, because

sometimes one goes to the scribe and the witnesses

—one Yosef ben Shimon goes to the scribe and the witnesses

and says to them: Write a document for me

for the sum of one hundred zuz,

as I intend to borrow

because I want to borrow

from my colleague Yosef ben Shimon.

And after they write and sign it for him,

since the name of the creditor is identical to the name of the debtor,

he takes it

—he takes the document and uses it as proof that he is the creditor—

and says to him,

to the second Yosef ben Shimon:

Give me the hundred that you borrowed from me,

give me the hundred zuz that you borrowed from me, and here is the document signed by witnesses.

And for this reason the tanna of our Mishna holds that they cannot produce a promissory note against one another.

But

the other tanna holds that

that

a document is not written for the debtor until the creditor is present,

and since the debtor and the creditor were both present when the promissory note was written, this indicates that they are not wary of one another, and there is no concern of fraud. Nor is there concern that the document was lost. Therefore, this tanna holds that the two Yosef ben Shimon’s may collect a promissory note that they produce against one another.

We learned in the Mishna:

If a promissory note of Yosef ben Shimon that has been paid is found among one’s documents

—two Yosef ben Shimon’s borrowed from one person, and each of them gave him a loan document, and a receipt was found in the creditor’s possession stating that Yosef ben Shimon’s document had been paid—

the documents of both of them are considered paid,

and he cannot collect from either of them, since he has a receipt stating that Yosef ben Shimon paid the debt.

And although we learned in Bava Metzia [20b] that a receipt found in the creditor’s possession and not in the debtor’s possession is not proof that the debtor is exempt, the Gemara there explained that in our Mishna the loan document was found among the creditor’s torn and paid documents. Therefore, the receipt is relied upon to exempt the debtor.

And we infer:

The reason is that a receipt was found

in the creditor’s possession stating that Yosef ben Shimon’s document had been paid.

But if no receipt was found

in the creditor’s possession,

he can

the creditor can

collect

the debt from Yosef ben Shimon.

And we raise an objection:

But did we not

previously state in our Mishna, before this law:

“And another person cannot produce against them

against one of the two Yosef ben Shimon’s

a promissory note,”

and even if the creditor does not possess a receipt stating that the document was paid, he cannot collect the promissory note, since each of them can claim: It was the other Yosef ben Shimon who borrowed from you, not I. This is what

we learned!

Rabbi Yirmeya said:

Here we are dealing

with documents bearing three generations,

where the promissory notes record three generations—for example, in one document it says “Yosef ben Shimon ben Yaakov,” and in the second document it says “Yosef ben Shimon ben Yitzhak.” Thus, there is a distinctive identifying mark in each promissory note indicating whose it is. Therefore, if he does not have a receipt, he may collect the promissory notes. But since he has a receipt stating that the debt of Yosef ben Shimon was paid, the strength of the documents is weakened, and they are presumed paid, since each of them claims that his debt was paid, and the creditor cannot refute either of them, as the loan documents were found among his torn and paid documents.

And we raise an objection: Since the case involves documents that record three generations, the receipt should also record three generations, and it should be clear for whom it was written.

Then let us examine the receipt to see in whose name it was written!

Let us see what name is written in the receipt, and for whom it was written!

Rav Hoshaya said:

The case is one

where the document records three generations,

where the promissory notes record three generations,

but the receipt does not record three generations,

and the receipt records only two generations, so it is not clear for whom it was written. Therefore, the strength of the documents is weakened, and they are presumed paid, since each of them claims that his debt was paid, and the creditor cannot refute either of them, as the loan documents were found among his torn and paid documents.

Abaye said: This is what it means:

The Mishna is speaking of a case where the two Yosef ben Shimon’s lent money to one person; they were the creditors and not the debtors. In this case they may collect the debt, as the Gemara explained above: They may produce a promissory note against others, and we are not concerned that the promissory note held by one of them fell from the other Yosef ben Shimon.

And this is how the words of the Mishna should be interpreted:

If there is found

among the debtor’s documents

a receipt stating that

“his document from Yosef ben Shimon”

—that I owe him—

is paid

and he had a promissory note from the two Yosef ben Shimon’s,

the documents

of the debt of

both of them are paid,

because their presumptive status was weakened by this receipt, and the bearer of the document is at a disadvantage. When either of them produces the promissory note, the debtor says to him: Here is his receipt.

And if they wrote a document of authorization between themselves, granting each of them the right to collect both of their debts, the debtor must pay them one document, since he admits that he paid only one debt.

However, if the debtor claims that he paid both debts and that the receipt was written without specification concerning both of them, he is not obligated to pay them, even though they wrote an authorization for one another. But if he admits that he borrowed two loans and paid only one of them, then although the presumptive status of the creditors was weakened with regard to each one’s ability to collect his own debt, since they executed an authorization between themselves, they may collect one promissory note from the debtor by virtue of the authorization.

We learned in the Mishna:

How should they proceed:

If there are two people named Yosef ben Shimon, and a loan or sale document is written without distinguishing between them,

they should add three generations,

they should write three generations in the document, such as Yosef ben Shimon ben Yaakov, so that it will be clear in the document for whom it was written;

and if they were distinguished by three generations,

meaning that the names of all three generations were identical—

they should write a distinguishing mark,

such as Yosef ben Shimon the tall, or Yosef ben Shimon the dark-skinned;

and if they were distinguished by identifying characteristics,

meaning that they were identical in their identifying characteristics, then, if one of them was a

koen,

they should write in the document that he is a

koen.

The tanna

in a beraita taught:

If both of them

were identical in all three generations and also in their identifying characteristics, and both of them were

kohanim,

they should write

four

generations

in the document, such as Yosef ben Shimon ben Yaakov ben Yitzhak. In this manner, certainly the names of their fathers will not be identical.

Mishna:

One who says to his son

at the time of his death:

A debt document

that was found

among my documents

is

paid, but I do not know which one it is,

as the borrower trusted me, and I did not return his debt document to him, and I do not wish to be punished for this by collecting from him by improper means.

All the documents are paid,

so that every borrower may claim that his document has been paid, and the lender can collect only from those who say that they have not yet repaid him .

And if the person who said to his son that one of his debt documents had been paid

was found to have two documents in one person’s name,

meaning that two documents concerning one borrower were found in his possession, because that borrower had taken two loans from him,

the larger

the document whose amount is greater is presumed

paid, while the smaller one is not paid,

since he said only that one document had been paid .

Gemara:

Rava said:

If one says to his fellow,

“You have a document in my possession”

that is

paid—

and he has two documents in his possession, the document with the

larger

amount is

paid, while the smaller one is not paid,

as he acknowledged only that one document was paid.

And if he said to him:

“You have a debt in my possession”

that is

paid,

this indicates the entire debt, even if it is divided among many documents. Therefore,

all the documents are paid.

Ravina said to Rava: If so,

the same should be said with regard to a sale: If he writes in the sale document:

“My field is sold to you,”

the large field

that he owns

is sold to him;

but if he writes to him:

“A field that I have is sold to you,”

since the term “field” includes all the fields, as in “a red field” [Genesis 32:4]—

all his fields are sold to him!

Yet the law is not so.

And we answer: There is a distinction between a loan and a sale. In the case of a loan, the loan document is in the lender’s possession, whereas in the case of a sale, the sale document is in the buyer’s possession. Therefore,

there,

in the case of a sale,

the hand

of the buyer, who is

the holder of the document, is at a disadvantage,

and he can receive from the document only the lesser amount. This is not so in the case of a loan, where the documents are in the lender’s possession: the lender’s hand is at a disadvantage, and if he says that one of the documents has been paid, he can collect only the document with the smaller amount of the two.

Mishna:

One who lends money to another through a guarantor,

who accepted responsibility for the loan,

may not collect from the guarantor;

the lender is not permitted to collect from the guarantor until he takes the borrower to court and the court obligates him to pay. Only if the borrower has nothing with which to pay may he then claim from the guarantor and collect from him.