Bava Metzia 7bבבא מציעא ז׳ ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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7bז׳ ב

מאי שנא ליד דיין אמר רבא הכי קאמר ואחר שמצא שטר שנפל ליד דיין והיכי דמי דכתב ביה הנפק לא יוציאו עולמית

The Gemara asks: What is different about the case where the promissory note fell into the possession of a judge, such that the creditor cannot retrieve it to collect the debt? Rava said this is what the baraita is saying: But in the case of another individual, who is neither the debtor nor the creditor, who found a promissory note that had already fallen into the possession of a judge, it may never be removed from his possession until proof is provided. And what are the circumstances? What does it mean that the promissory note had fallen into the possession of a judge? It is a case where the court wrote in the promissory note a ratification certifying that it examined and ratified the note and it can be used to collect the debt.

ולא מיבעיא לא כתב ביה הנפק דאיכא למימר כתב ללות ולא לוה אלא אפי' כתב ביה הנפק דמקוים לא יחזיר דחיישינן לפירעון

And the reason the baraita refers specifically to these circumstances is that it is not necessary to state that in a case where there is no ratification written in the promissory note that the creditor cannot use it to collect the debt; as it can be said that the debtor wrote the document because he intended to borrow the money, but he ultimately did not borrow it. Rather, the baraita states that even in a case where there is a ratification written in the promissory note, as it is now a ratified promissory note, the finder should not return it to the creditor, as we suspect that there was repayment, i.e., that the debtor may have repaid the debt, and he lost the promissory note.

ורבי יוסי אומר הרי הוא בחזקתו ולא חיישינן לפירעון ולא חייש ר' יוסי לפירעון

The Gemara discusses the continuation of the baraita: And Rabbi Yosei says: The promissory note retains its presumptive status. The Gemara explains: And we do not suspect that there was repayment; had the debt been repaid the debtor would have immediately destroyed the promissory note. The Gemara asks: But does Rabbi Yosei not suspect that there was repayment?

והתניא מצא שטר כתובה בשוק בזמן שהבעל מודה יחזיר לאשה אין הבעל מודה לא יחזיר לא לזה ולא לזה

But isn’t it taught in a baraita: If one found a marriage contract in the marketplace, in a case when the husband admits that he has not yet paid the amount written in the contract to his wife, the finder must return the document to the wife. In a case when the husband does not admit this, but instead claims that he has already paid the amount written in the contract, the one who found it should not return it to this one, the husband, or to that one, the wife.

רבי יוסי אומר עודה תחת בעלה יחזיר לאשה נתארמלה או נתגרשה לא יחזיר לא לזה ולא לזה

Rabbi Yosei says that there is a distinction between different situations: If the wife is still under the auspices of her husband, i.e., she is still married to him, the one who found the marriage contract must return it to the wife because presumably the husband did not pay her the amount specified in the marriage contract during their marriage. If the wife was widowed or divorced, he should not return it to this party, the husband or his heirs, or to that party, the wife, as perhaps she already received payment and the contract was later lost by her husband or his heirs. In this case, Rabbi Yosei suspects that there was payment.

איפוך נפל ליד דיין לא יוציאו עולמית דברי רבי יוסי וחכ"א הרי הוא בחזקתו

The Gemara answers: Reverse the order of the tanna’im in the baraita and teach it as follows: If the promissory note fell into the possession of a judge, it may never be removed; this is the statement of Rabbi Yosei. And the Rabbis say: It retains its presumptive status.

אי הכי קשיא דרבנן אדרבנן

The Gemara asks: If so, the contradiction between the statement of the Rabbis in this baraita and the statement of the Rabbis with regard to the case of the marriage contract is difficult. Whereas according to the emended version of the baraita the Rabbis do not take into account the possibility that the debt was repaid, in the case of the marriage contract the Rabbis take this possibility into account.

שטר כתובה כולה רבי יוסי וחסורי מחסרא והכי קתני אין הבעל מודה לא יחזיר לא לזה ולא לזה בד"א שנתארמלה או שנתגרשה אבל עודה תחת בעלה יחזיר לאשה שר"י אומר עודה תחת בעלה יחזיר לאשה נתארמלה או שנתגרשה לא יחזיר לא לזה ולא לזה

The Gemara resolves the problem: The baraita that discusses the marriage contract is entirely in accordance with the opinion of Rabbi Yosei; it contains no dispute. And the baraita is incomplete, and this is what it is teaching: In a case where the husband does not admit that he did not pay the marriage contract, the one who found it should not return it to this party or to that party. In what case is this statement said? It is said in a case where the woman was widowed or divorced. But if she is still under the auspices of her husband, the finder must return it to the wife. As Rabbi Yosei says: If she is still under the auspices of her husband, the finder must return it to the wife. If she was widowed or divorced, he should not return it to this party or to that party.

רב פפא אמר לעולם לא תיפוך רבי יוסי לדבריהם דרבנן קאמר להו

Rav Pappa said: Actually, do not reverse the opinions in the baraita, but instead resolve the contradiction differently: Rabbi Yosei was telling the Rabbis what the halakha should be in the case of a marriage contract according to their statement, i.e., according to their opinion that one who finds a promissory note needs to take into account that the debt may have been repaid already.

לדידי אפילו נתארמלה או נתגרשה נמי לא חיישינן לפירעון לדידכו אודו לי מיהת בעודה תחת בעלה דיחזיר לאשה דלאו בת פירעון היא

His statement should be understood as follows: In my opinion, even if she was widowed or divorced we do not suspect that there was payment. But according to your opinion, concede to me, in any event, that while she is still under the auspices of her husband the finder should return the document to the wife, as the marriage contract is not yet subject to payment. Since the husband is not yet liable to pay, it is unlikely that he paid.

ואמרו ליה רבנן אימור צררי אתפסה

And the Rabbis said to him in response: Even if they are still married, say that he gave her bundles of money, and in exchange she gave him back the marriage contract. If the finder then returns the marriage contract to the wife, that would enable her to collect the sum twice.

רבינא אמר לעולם איפוך קמייתא וטעמא דרבנן הכא משום דחיישינן לשתי כתובות ורבי יוסי לשתי כתובות לא חייש

Ravina said: Actually, reverse the order of the tanna’im in the first baraita, which discusses one who finds a promissory note, and resolve the contradiction between the different statements of the Rabbis as follows: The reason for the opinion of the Rabbis here, that a marriage contract cannot be returned to the wife, is that we suspect that the husband wrote two marriage contracts; after the first marriage contract was lost, the husband had to write a second one in its stead. Returning to the wife the marriage contract that was found would enable her to collect twice. And Rabbi Yosei holds that it should be returned to the wife because he does not suspect that the husband wrote two marriage contracts; in his opinion, it is a rare occurrence.

אמר רבי אלעזר מחלוקת בששניהם אדוקים בטופס ושניהם בתורף אבל אחד אדוק בטופס ואחד אדוק בתורף זה נוטל טופס וזה נוטל תורף ור' יוחנן אמר לעולם חולקין

§ Rabbi Elazar says: With regard to the dispute between Rabban Shimon ben Gamliel and Rabbi Yehuda HaNasi in the case of a creditor and a debtor both grasping a promissory note, Rabban Shimon ben Gamliel holds that they divide the promissory note evenly, specifically in a case where both are grasping the standard part of the promissory note, i.e., the part that contains the standard formulation of the note, or both are grasping the essential part of the promissory note, where the names of the creditor and debtor are written, as well as the amount owed and the date. But if one of them is grasping the standard part and the other one is grasping the essential part, they divide the promissory note between them based on the section that each of them is holding; this one takes the standard part and that one takes the essential part. And Rabbi Yoḥanan says: Actually, they divide everything equally.

ואפילו אחד אדוק בטופס ואחד אדוק בתורף והתניא זה נוטל עד מקום שידו מגעת לא צריכא דקאי תורף בי מצעי

The Gemara asks with regard to Rabbi Yoḥanan’s statement: And does he hold that this is the halakha even in a case where one is grasping the standard part and one the essential part? But isn’t it taught in the baraita that was cited above with regard to a garment: This one takes up to where his hand reaches and that one takes up to where his hand reaches? Here as well, if one is grasping the standard part and the other is grasping the essential part, they should take the parts they are holding. The Gemara answers: No, this halakha that Rabbi Yoḥanan stated is necessary for a case where the essential part is located in the middle. He was not discussing the case where one was grasping the standard part and the other one was grasping the essential part. In that case, he would agree that each takes the part he was grasping.

אי הכי מאי למימרא לא צריכא דמקרב לגבי דחד מהו דתימא א"ל פלוג הכי קמ"ל דא"ל מאי חזית דפלגת הכי פלוג הכי

The Gemara asks: If so, what is the purpose of stating that they divide it equally? That is obvious. The Gemara answers: No, it is necessary in a case where the essential part of the document is closer to one of them. Lest you say that the one to whom the essential part is closer can say to the other one: Divide it in this manner, leaving the essential part on my side, Rabbi Yoḥanan teaches us that the other one can say to him in response: What did you see that led you to divide it in that manner? Divide it in this manner, so that we will both share the essential part.

א"ל רב אחא מדפתי לרבינא לרבי אלעזר דאמר זה נוטל טופס וזה נוטל תורף למה ליה וכי לצור ע"פ צלוחיתו הוא צריך

Rav Aḥa of Difti said to Ravina: According to the opinion of Rabbi Elazar, who says this one takes the standard part and that one takes the essential part, why do either of them need it? Does he need half of the document to cover the opening of his flask? Having half a promissory note is of no legal consequence.

א"ל לדמי

Ravina said to him: The division in question is not division of the document itself, with each taking half of the paper. It is a division of its monetary value, as the value of each section of the promissory note is compared to the value of the other.

דאמר הכי שטרא דאית ביה זמן כמה שוי ודלית ביה זמן כמה שוי בשטרא דאית ביה זמן גבי ממשעבדי ואידך לא גבי ממשעבדי יהיב ליה היאך דביני ביני

The one grasping the essential part of the promissory note, which contains the date, can say this: Consider a promissory note that has the date written on it; how much is it worth? And consider a promissory note that does not have the date written on it; how much is it worth? The significance of writing the date is that if a creditor is in possession of a promissory note that has the date written on it, he can collect his debt even from liened property that has been sold by the debtor to another individual after taking the loan. But if a creditor is in possession of the other kind of promissory note, i.e., one that does not have the date written on it, he cannot collect his debt from liened property. Therefore, the other party, who is grasping the standard part of the document, gives him the difference between the two values.

ויחלוקו נמי דאמרן לדמי דאי לא תימא הכי שנים אוחזין בטלית הכי נמי דפלגי הא אפסדוה הא לא קשיא

And this is also true in general, with regard to cases where we said that the two litigants divide the disputed item: The reference is to the monetary value, and not division of the actual item. As, if you do not say so, but rather you hold that the item itself is divided, in the case of two people who come to court holding a garment, do they also divide the garment itself into two? But by doing so they would ruin it. The Gemara rejects this proof: This is not difficult, as it is possible to explain that they actually cut the garment in two.