Bava Metzia 13a (יג.) — the Talmud in English

Rav Asi said: The statement that we learned, that they write a document for the borrower even when the lender is not with him, refers to

documents of acquisition.

That is, the borrower acquires and pledges his property to the lender from the date written in the document, whether or not he ultimately borrows from him ; in either case, the lender will collect from that property from the date written in the document,

since he has obligated himself

from today, and the lender collects from the property by law.

And we raise an objection:

If so,

given that ordinary documents are written only when they see the loan actually being given,

our Mishna,

which teaches: If they contain a lien on property, one may not return them, and we established

[and established] that it refers to

a case where the debtor admits,

and one may not return the document

because

there is concern

that perhaps he wrote it in Nisan in order to borrow, but did not borrow until Tishrei, and he will come to collect from purchasers unlawfully; why may one not return it?

Let us examine

[let us see and consider] what kind of document is involved:

If

it refers to

a document of acquisition—

then he has obligated

the borrower

himself

to the lender from the time the document was written, so why should one not return it to him? There is no concern here at all!

And

if it is a document without acquisition,

but merely an ordinary loan document—

there is no reason for concern

[there is no basis for concern],

since you said that

[when]

the lender is not with him

when he borrows, meaning that he is not giving him the loan in our presence—

we do not write it!

And what we learned, that they write a document for the borrower, refers specifically to a document of acquisition!

Rav Asi could have said to you: Even though in the case of documents without acquisition, when the lender is not with him—

we do not write them,

nevertheless, in

the Mishna, once the document fell

the document—

it is discredited

[a defect has arisen in it],

and we are concerned that perhaps an exceptional circumstance occurred and it was written

[perhaps it happened that they wrote a document for the borrower without the lender being present].

The Gemara now returns to resolve the objection we raised: How can they write a document for the borrower even though the lender is not with him?

Abaye said: The witnesses’ signatures confer the benefit upon him.

That is, from the time the witnesses sign the document, the lender acquires the lien on the property, even though the actual loan took place later.

And

if so, one can say that what we learned, that they write a document for the borrower even when the lender is not with him, refers

even

to

documents without acquisition,

since even in ordinary loan documents, the lien takes effect from the time of writing.

Abaye did not resolve the matter like Rav Asi

because it was difficult for him

Once you have said

that

in the case of documents without acquisition, when the lender is not with him—

we do not write them,

if so, even when one finds a promissory note,

there is no reason to be concerned that an exceptional circumstance occurred and it was written

[there is no concern that perhaps it was written without the lender being present].

If so, it still remains difficult: Why did we learn in our Mishna that one may not return the document?

Therefore Abaye said that the witnesses’ signatures confer the benefit upon him, and if so, they write a document for the borrower even when the lender is not with him. Accordingly, in our Mishna, when a document is found, we are concerned that perhaps he wrote it in Nisan in order to borrow, but did not borrow until Tishrei, and he will collect unlawfully from purchasers.

[Below, the Gemara asks: Since the witnesses’ signatures confer the benefit upon him, he is collecting from the purchasers lawfully from the time of signing, so what is the concern?!] And we raise an objection:

But as we learned: If one found

one of these documents:

bills of divorce, and

documents of

the emancipation of slaves, a deyteki

[a document containing the will of a person dangerously ill ], documents of

gifts, and receipts

[documents attesting to the repayment of debts],

he may not return it,

because there is concern

that perhaps they had been written

for future use,

and

in the end

the owner reconsidered and decided not to give them

[that is, in the end he decided not to use them].

And

now, according to Abaye,

when he reconsidered concerning them—

what of it? Did you not say that the witnesses’ signatures confer the benefit upon him,

so that the property became subject to the lien from the time of writing?!

And we answer:

This applies

to what we say—that the witnesses’ signatures confer the benefit upon him—only

where

in the end

it comes into his possession

[the document came into the lender’s possession], meaning that the loan ultimately took place; in that case we say that the lien takes effect from the time the witnesses signed.

But where it does not come

the document

into his possession

of the lender, meaning that the loan never took place at all—

we do not say that the witnesses’ signatures conferred the benefit upon him.

And we raise an objection:

But our Mishna

[our Mishna],

which teaches: If one found promissory notes, if they contain a lien on property—

he may not return them, and we established

[and established] that it refers to

a debtor

[the borrower]

who admits

that he borrowed,

and

nevertheless he may not return it,

because

there is concern

that perhaps he wrote it in Nisan in order to borrow, but did not borrow until Tishrei.

Granted, according to Rav Asi, who said

that the Mishna we learned, that they write a document for the borrower even when the lender is not with him, refers to

documents of acquisition, he establishes it

[he establishes our Mishna]

with regard to documents without acquisition, as we said,

that this is why one may not return it: Since there is concern that it happened that they wrote a document for the borrower not at the time of the loan, he might collect unlawfully from purchasers.

But according to Abaye, who said that the witnesses’ signatures confer the benefit upon him, what can be said?

Why should the finder not return the documents to the lender? The borrower admits that he borrowed from him, and if he collects from purchasers from the time of writing, he will be collecting lawfully!?

Abaye could have said to you:

In

our Mishna, this is the reason

that one may not return it: because

there is concern about repayment and collusion.

That is, there is concern that perhaps the borrower already repaid his debt and received the document from the lender, and the document fell from his possession. His admission that he did not repay the debt is an act of deceitful collusion between him and the lender, so that the lender can collect land from purchasers who bought from the borrower without a guarantee, and they will divide it between themselves.

And we raise an objection:

But according to Shmuel, who said

that

we are not concerned about repayment and collusion,

as Shmuel said below [16b]: One who finds a document of acquisition in the marketplace should return it to its owners, and we are not concerned that the debt was repaid.

The reason is that when the borrower repays his debt to the lender, as soon as he receives the document from the lender, he tears it up; therefore, there is no concern that the document fell from his possession,

what can be said,

how are the words of our Mishna to be explained?

This works if he holds

Shmuel

like Rav Asi, who said

that only

in the case of documents of acquisition

do they write a document for the borrower without the lender,

he establishes our Mishna with regard to documents without acquisition.

And although they do not write a document for the borrower without the lender, we are concerned that perhaps it nevertheless happened that he wrote it in Nisan in order to borrow, but did not borrow until Tishrei.

But if he holds like Abaye, who said that the witnesses’ signatures confer the benefit upon him, what can be said?

Why should the finder not return the document to the lender?

And we answer:

Shmuel establishes the Mishna in a case where there is no

debtor who admits.

That is, the borrower claims that the document is forged and that he did not write it. Therefore, its finder should not return it to the lender.

And we raise an objection:

If so,

that the case is one where the borrower does not admit to the loan,

when they do not contain

in the documents

a lien on property—

why should he return

them to the lender?

Granted that

when they do not contain a lien on property,

he cannot collect from liened property,

but

he can collect from unencumbered property

[from property that is free of liens, meaning property in the borrower’s possession]; yet the borrower claims that he never borrowed at all!

And we explain:

Shmuel follows his own reasoning

[his position stated elsewhere].

For Shmuel said: Rabbi Meir would say that with regard to a promissory note that does not contain a lien on property, the lender cannot collect

anything from it.

Not from liened property—

and not from unencumbered property.

Such a document has no status as a document at all; it is like an oral loan without witnesses. Therefore, the finder may return it to the lender, since he cannot collect anything at all on its basis.

And we wonder:

But since he cannot collect

anything at all

from it, why should he return

the document? What will the lender do with it?

Rabbi Natan bar Oshaya said:

Although the lender cannot use the document as a promissory note, nevertheless the finder returns it to him merely as a piece of paper, so that he can

wrap

it

around the mouth of his flask

[his bottle]

belonging to the lender.

And we raise an objection:

Let us return it to them

[let us return the document]

to the borrower,

so that he can

wrap it around the mouth of the borrower’s flask!