Bava Batra 173a — the Talmud in English

And it is explained in the Mishna that we are not concerned about a loss, and even Abaye, who holds that at times we are concerned about a loss, agrees that we are not concerned lest the document fell from someone who has the same name as the one currently holding the document. And this holder of the document happened to find precisely a document bearing a name like his own.

And this is difficult,

But what of this,

the beraita that disputes our Mishna,

as it was taught: Just as two

two Yosef ben Shimon

cannot produce this debt document against one another—

so they cannot

they

produce

a debt document

against others, because we are concerned lest the document belongs to the second Yosef ben Shimon.

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

With regard to what do they disagree? In what are the tannaim of the beraita and the Mishna disputing? Surely it is obvious that the tannaim do not disagree as to whether we are concerned lest it fell from the other person who has precisely the same name as his, and precisely he found the document. If so, in what did they disagree?

What is the dispute between the tannaim of the beraita and the Mishna? Surely it is obvious that they do not disagree about whether we are concerned that the document fell from the other person with exactly the same name, and that he himself found the document. If so, what is their dispute?

And we explain:

With regard to promissory notes,

as to whether

they are acquired through delivery, they disagree: Although we are not concerned about a loss in such a case, we are concerned lest he received the document through an act of acquisition by delivery from the other person, and the document was not written for him.

They agree that there is no concern that the document fell in this manner, but they are concerned that perhaps he received the document through a legal act of delivery from the other person, and that the document was not written for him.

And in this they disagreed:

Our tanna holds: promissory notes

promissory notes

are acquired through delivery, and he need not write a document of sale for the document that he sells to him. Rather, once he delivered the debt document to him so that he would acquire it, the debtor became obligated to pay it to the recipient of the document and became liened to him just as he had been liened to the creditor. Therefore, even if the document was written for the other person and the other person gave it to him, now the document belongs to him, because he acquired it through delivery.

It is not necessary to write a bill of sale for the document being transferred to him. Once he delivers the promissory note to the recipient so that the recipient may exercise its rights, the borrower becomes obligated to pay the debt to the recipient, and the lien on the borrower’s property is transferred to him just as it had been attached to the original lender. Therefore, even if the document was written for the second person and the second person gave it to him, the document now belongs to him, because he acquired it through delivery.

And against his will, the debtor will pay the one in whose possession the document is.

And the outside tanna

of the beraita

holds:

that

promissory notes are not acquired through delivery alone, but only with the addition of a document of sale for the document that he sells to him. Therefore, although we are not concerned about a loss, nevertheless it is possible that this document was written for the second person and was delivered to him only as a deposit, and he cannot collect it—for the document is not his, since promissory notes are not acquired through delivery alone, but through another document. And if the second person comes and claims against him, the debtor will say to him that he does not pay him, since the document is not in his possession.

alone, but only with the addition of a bill of sale for the document being transferred to him. Therefore, although there is no concern that the document fell, it is nevertheless possible that this document was written for the second person and was given to him only as a deposit, and he cannot collect the debt with it—for the document does not belong to him, since documents are not acquired through delivery alone, but through an additional bill of sale. If the second person comes and demands payment from the borrower, the borrower can tell him that he is not paying him because the document is not in his possession.

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

And if you wish, say:

it is possible to give another explanation of what the Mishna and the beraita dispute:

Everyone

holds that

promissory notes

promissory notes

are acquired through delivery, without a document of sale,

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

and here, with regard to whether it is necessary

to bring proof, they disagree: They disagree in the dispute between Abaye and Rava as to whether proof and witnesses are required regarding the delivery of the document, that it was not delivered as a deposit.

They disagree in the dispute between Abaye and Rava over whether one must bring proof and witnesses that the document was delivered as a transfer of ownership and not as a deposit.

Our tanna holds: It is not necessary 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, now the document is his, and the debtor is obligated to pay him the debt in the document.

And the outside tanna holds: It is necessary to bring proof

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

For we find that Abaye and Rava disagreed about this,

as it was stated: Promissory notes are acquired through delivery.

Abaye said: It is necessary to bring proof,

that the document was delivered to him as an acquisition and not as a deposit,

and Rava said: It is not necessary to bring proof,

rather, we establish the document in the presumptive ownership of the one holding it.

Abaye said: From where do I derive this

from where do I learn that it is necessary to bring witnesses that the other person transferred the document to him as an acquisition and did not deliver it to him as a deposit?

As it was taught

in a beraita:

One of the brothers, whose debt document

of their father

emerges 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 so that the same law applies to others—

to others, and not only to one of the brothers, but anyone whose possession contains another person's document must bring proof that the other person transferred the document to him?

And Rava said

it is not possible to prove from the beraita, which speaks of brothers, with regard to one holding another's document, because

it is different— -

the law concerning

brothers

is different, for the one holding the document must bring proof to his brothers, because it is the way of brothers

to take from one another,

taking from one another, since they are found in one place. This is not so with one holding another's debt document, where we are not concerned lest he took it from the other person without an acquisition.

There are those who say

that the statements were said in the reverse order:

Rava said: From where do I derive this?

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

As it was taught

in a beraita:

One of the brothers, whose debt document

of their father

emerges 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 spoke of a case involving brothers, it is precise that only concerning

brothers

is it necessary to bring proof that they delivered the document to him in order to acquire it, since it is the way of brothers

to take from one another,

taking from one another.

But

concerning

others

where this concern does not exist,

it is not

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

And Abaye

disputes Rava and holds that this cannot be inferred from the beraita. Rather, even when he received a document from others, he must bring proof that it was delivered to him as an acquisition and not as a deposit. And the reason the beraita stated a case of

brothers is that

is that

it was necessary for it

as a novel teaching.

It might have entered your mind to say: Since

it is the way of brothers

to take from one another,

taking from one another, therefore

say

that I would have said that

they are particularly careful

each of them is cautious concerning his brother,

and they do not need to bring proof

that the document was delivered to him as an acquisition.

It teaches us

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

It was explained in the Gemara that the two tannaim of the Mishna and the beraita who disagreed as to whether two Yosef ben Shimon can produce a debt document against others disagreed as to whether promissory notes are acquired through delivery, or disagreed in the dispute between Abaye and Rava as to whether one must bring proof concerning the document that it was delivered to him as an acquisition and not as a deposit.

And the Gemara brings a third tanna who disputes these two tannaim.

But what of that which was taught

in a beraita:

Just as they

two Yosef ben Shimon

produce a debt document against others—

so they produce

a debt document

against one another.

And this tanna disputes the tannaim above, who hold that they cannot produce a debt document against one another.

With regard to what do they disagree?

And we explain: They disagreed about this matter,

whether one writes a document for the debtor even though the creditor is not with him.

Our tanna holds: One writes a document for the debtor even though the creditor is not with him,

and since this is so, concerning two Yosef ben Shimon there is concern about fraud, because

sometimes one goes to the scribe and witnesses,

sometimes one Yosef ben Shimon goes to the scribe and witnesses,

and says to them: Write me a document

for a sum of one hundred zuz,

for I intend to borrow

that I want to borrow

from my fellow Yosef ben Shimon.

And after they write and sign it for him,

and after they write and sign it for him, since the creditor's name is the same as the debtor's name,

he takes it

taking the document and using 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 in our Mishna holds that they cannot produce this debt document against one another.

But

the outside tanna holds:

that

one does not write a document for the debtor until the creditor is with him,

and since the debtor and creditor were together at the time the debt document was written, it follows that they are not strict with one another, and we are not concerned about fraud, and we are also not concerned about a loss. Therefore, this tanna holds that they can collect a debt document of two Yosef ben Shimon, which they produce against one another.

We learned in the Mishna:

If among the documents of one of them there was found the document of Yosef ben Shimon, marked paid—

two Yosef ben Shimon who borrowed from one person, each of them giving him a loan document, and a receipt was found in the creditor's possession in which it was written that the document of Yosef ben Shimon was paid,

the documents of both of them are paid,

and he cannot collect from them, since he has a receipt that Yosef ben Shimon repaid 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 for exempting the debtor, the Gemara there explained that in our Mishna the loan document was found among the creditor's torn and paid documents. Therefore, we rely on the receipt to exempt the debtor.

And we infer:

The reason is that there was found

in the creditor's possession a receipt that the document of Yosef ben Shimon was paid;

but if there was not found

a receipt in the creditor's possession—

the creditor can

the creditor can

produce

to collect the debt from Yosef ben Shimon.

And we raise an objection:

But did we not

and earlier in our Mishna, before this law, learn:

“And another person cannot produce against them

against one of the two Yosef ben Shimon

a debt document,”

and even if the creditor does not have a receipt in his possession that the document was paid, he cannot collect the debt document, since each of them can claim: The other Yosef ben Shimon is the one who borrowed from you, and not I. Thus

we learned!

Rabbi Yirmeya said:

Here it speaks

of names with three generations,

where the debt documents recorded three generations, for example: in one document it was written, Yosef son of Shimon son of Yaakov, and in the second document it was written, Yosef son of Shimon son of Yitzhak, so that there is a definitive identifying mark in the debt document as to whose it is. Therefore, if he does not have a receipt, he can collect the debt documents. But since he has a receipt in which it is written that the debt of Yosef ben Shimon is paid, the strength of the documents is weakened, and they are presumed paid, since each of them claims, “Mine is paid,” and the creditor cannot contradict either of them, since the loan documents were found among his torn and paid documents.

And we object: Since it speaks of writing three generations in the document, then the receipt too was written with three generations, and it is clear for whom it was written,

and let us see under whose name the receipt was written!

And let us see what is written in the receipt, under whose name it was written!

Rav Hoshaya said:

It speaks

of names with three generations in the document,

where the debt documents recorded three generations,

but the receipt does not have names with three generations,

and in the receipt only two generations were written, and 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, “Mine is paid,” and the creditor cannot contradict either of them, since the loan documents were found among his torn and paid documents.

Abaye said: This is what it means:

the Mishna speaks of a case in which two Yosef ben Shimon lent to one person; they were the creditors and not the debtors. In this case they can collect the debt, as the Gemara explained above: They can produce a debt document against others, and we are not concerned lest the debt document in the possession of one of them fell from the hands of the second Yosef ben Shimon.

And this is how the words of the Mishna are to be interpreted:

There was found

in the debtor's documents

a receipt in which it was written that

the document of Yosef ben Shimon against me

that I owe him

is paid

it is—and he had a debt document with the two Yosef ben Shimon,

the documents

the debt of

both of them is paid,

because their presumptive status was weakened by this receipt, and the holder of the document is at a disadvantage. And when each of them produces the debt document, he says to him: Here is his receipt.

And if they wrote an authorization document between them, granting each of them the right to collect both of their debts, the debtor is obligated to pay them one document, for he admits that he repaid only one document.

However, if the debtor claims that he repaid both debts and the receipt was written generally concerning both of them, he is not obligated to pay them, even though they wrote authorization for one another. But if he admits that he borrowed two loans and repaid only one of them, then even though the creditors' ability to collect each his own debt was weakened, since they made an authorization document between them, they can collect one document from the debtor by virtue of the authorization.

We learned in the Mishna:

How shall they act:

if there are two Yosef ben Shimon, [and there is] a promissory note of a loan or a sale, so that they should not exchange [the notes] between them?

They should make [the name] threefold,

they should write three generations in the document, for example, Yosef ben Shimon ben Yaakov, so that there should be a distinguishing mark in the document for whom it was written;

and if they were threefold,

that the names of the three generations were identical—

they should write a sign,

for example, Yosef ben Shimon the tall, or Yosef ben Shimon the black;

and if they were marked

so that they were identical in their distinguishing marks—if one of them was a kohen,

they should write

in the document that he is a

kohen.

The tannai

in a beraita:

if they were both

identical in the three generations and also in their distinguishing marks, and they were both

kohanim—

they should write

four

generations

in the document, for example, Yosef ben Shimon ben Yaakov ben Yitzhak, and in this manner surely the names of their fathers will not be identical.

Mishna:

One who says to his son

at the time of his death:

One promissory note

that is found

among my promissory notes

is

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

and the borrower trusted me, and I did not return his promissory note to him, and I do not wish to be punished for this so that they should collect with it from him unlawfully.

All the promissory notes are paid,

for every borrower may claim that his promissory note has been paid, and he can collect only from those who say that they have not yet paid [their debts] .

And if the one who said to his son that one of his promissory notes was paid

was found to have two in one person's name

two promissory notes were found with him against one borrower, who had borrowed two loans from him.

The larger

the promissory note whose amount is larger is presumed

paid, and the smaller one is not paid,

since he said only that one promissory note was paid .

Gemara:

Rava said:

one who says to his fellow

“A promissory note that you have in my possession”

that is

paid—

and he has two promissory notes in his possession, the promissory note with the

larger

amount is

paid, and the smaller one is not paid,

for he admitted only concerning one promissory note that it was paid.

And if he said to him:

“A debt that you have in my possession”

that is

paid,

this implies the entire debt, even if it is divided among many promissory notes; and therefore

all the promissory notes are paid.

Ravina said to Rava: If so,

also concerning a sale let us say this: if he writes in the deed of sale:

“My field is sold to you”—

the large field

of his is

sold to him,

but if he writes to him:

“A field that I have is sold to you,”

for the expression “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: a distinction must be made between a loan and a sale, because in a loan the promissory note of the loan is in the lender’s possession, whereas in a sale the deed of sale is in the buyer’s possession; therefore

there

in a sale,

the hand

of the buyer, who is

the holder of the document, is in the weaker position,

and he can receive from the document only the least possible amount. This is not so in a loan, where the promissory notes are in the lender’s possession: the lender’s hand is in the weaker position, and if he says that one of the promissory notes is paid, he can collect only the promissory note with the smaller amount between them.

Mishna:

One who lends to his fellow through a guarantor

who accepted responsibility for the loan,

he may not collect from the guarantor,

the lender is not permitted to collect from the guarantor until he sues the borrower in court and the court obligates him to pay; and only if the borrower has nothing with which to pay may he then sue the guarantor and collect from him.