Answer (cont.): Rabanan who argue with R. Shimon ben Gamliel hold that documents are not acquired through Mesirah, like it explains below (169b);

He must write for him "acquire it and all its lien." Since they write that he is Makneh to him everything in the document, we are not concerned if the second document is in [the buyer's] hand;

Even if he had in his hand 1000 sale documents, the seller acquires through return of the document, since the buyer wrote to him that he returned and was Makneh to him.

Comment - Question: According to this Perush (Explanation #2), it is difficult why we do not make for him a second document in which it is written that Ploni ben Almoni told us "my document that you wrote and signed was lost. Now write another for a proof, so the seller cannot deny the sale if I will not find Edei Mesirah!"

This document cannot harm the seller at all. Since they write in the second document that because the first was lost, they wrote the second, it will not harm the seller at all when [the seller] shows the document that it returned to his hand, or he brings witnesses that the buyer returned the document in order to reverse the sale;

He cannot say "I had two documents, and as long as I have one, the sale does not go back", for it is proven from the second document that the seller did not write it for him. Rather, the witnesses made it after he returned the first to the seller, and he lied to them and said that it was lost!

Note: Tosfos did not explain why the witnesses make the replacement document after he returned the first to the seller. Seemingly, the buyer should request the replacement before returning the original, lest the witnesses check if he returned it! Perhaps the buyer fears to do so, lest the seller hear about it, and then he would not buy back his field without a guarantee that the replacement document cannot be used against him!

Answer: We are concerned lest a Beis Din err, and when the buyer shows the document that the witnesses made because he said that he lost the first document that they wrote, signed and gave to him...

Beis Din will err to say that had the witnesses not investigated that the first was lost, they would not have written a second for him;

Even according to Rabanan who say above (138b) that Beis Din are meticulous about witnesses [to make sure that they did not err], here we can say that they agree [that they do not check] because the witnesses testify about the initial sale document with clear testimony...

Also now they come to finish the matter, because he says that he lost the first document. They would write for him only a clear matter. Until here is a comment.

Question: It is difficult for Explanation #2, for R. Shimon ben Gamliel's words connote that he is concerned lest [the buyer] reverse the sale, but he is not concerned lest the buyer gave the document to another person in order to acquire the field;

Source: It says "and so R. Shimon ben Gamliel used to say, one who gives a gift to his friend... the gift returns."

Answer: To another person, if the buyer gave to him the document in order to acquire the field, he acquires through Mesirah, even though there is a still a second document in [the buyer's] hand;

Therefore, [making for the buyer] a second document cannot harm someone else, since [the buyer] cannot retract, since he gave to him another document;

Only to the seller, returning another document does not help, since in the second document, which remains in the buyer's hand, is written Chov of the seller.

Question: We discuss when the seller is not in front of us, like I explained above about R. Shimon ben Gamliel's words!

Answer: Surely, had he asked against R. Shimon ben Gamliel, who says that we do not write, one could ask this;

However, here we challenge what he said "except for the Achrayus in it." I.e. they do not write Achrayus in any case, even if he is in front of us.

Assertion: It seems that surely, he could have answered that the same applies to if he is in front of us, that they write. The Chidush is refer to he is not in front of us, even so we write. Rather, he gave a better answer.

Explanation: They will write for him from the second date.

Distinction: However, the document above that it says in the Beraisa, i.e. they write regarding a sale document, and they write in the document the first date, like I explained above (168b DH Aval. That is when he is not in front of us.)

Question: Since regarding loan documents we conclude that [a buyer suspects that] perhaps [the seller] appeased the creditor with coins, and the buyer will go to the seller [to ask before he gives his land to the creditor], if so we can infer from here that we do not write a receipt! (I.e. if one admits that he owes, and the lender claims that he lost his document, we force the borrower to pay and accept a receipt.)

If we write, why don't we write two loan documents (i.e. a replacement for a lender who says that he lost his document), and write a receipt for the other, like it asks here about a sale?

Answer (Ri): We cannot write a receipt for loan documents, for if so [the lender] will lose all the loans he will make from now and onwards, for he will not remember the receipt, and people will be dissuaded from lending;

However, in sale documents, if he loses, he loses. We should not cause this [buyer] to lose due to concern lest he lose another time (if he will resell it to the seller and buy it back).

Question: Still, according to the opinion that we write a receipt, why is a loan different? We should write [that the receipt is not valid] from this time and onwards!

Answer: Perhaps we decree [lest they write a receipt Stam].

Question (Ri): If the seller can dispel [Ploni, who bought a field, and it turns out it was stolen] with coins, why will [a later buyer] leave his land [for Ploni to take it]? Even if he knows that [the seller] did not yet pay the document (i.e. refund the money paid, a later buyer) can say that [the seller] should give land or coins, and if he does not have, then [Ploni] will pursue [the buyer]!

Note: This is not difficult if Ploni cannot be dispelled with coins. We can say that a later buyer knows that the seller has no more land.

It is not clear whether or not [a seller] can dispel with coins. It seems that he can dispel with coins.

Opinion #1 (Rashbam): The text does not say so.

Opinion #2: We can defend the text. It is according to the conclusion below (170a-b) that establishes the argument to be about whether or not he must clarify [his claim].

Observation: Even if the text does not say so here, one need not erase it in Sanhedrin (23b). It says "we asked - must he bring proof [specifically] of Chazakah, but not a document (it would not help)?! Rather, even through Chazakah" (either suffices). We hold that they argue about whether or not one must clarify.

The Gemara says about a Safek [whether the Get landed closer to her or to him], what is the consequence [of saying that she is divorced and not divorced]? If he is a Kohen, she is forbidden to him. If she is Ervah [to the Yavam], her Tzarah must do Chalitzah.

Even though this is not in Gitin (78a) regarding that Mishnah [of the Safek Get, a Gemara elsewhere explained it. We can say similarly here!]

Question: In a Beraisa in Gitin (11a), R. Eliezer b'Ribi Yosi says that they do not argue about documents that enter courts of Nochrim. Even though Nochrim signed on them, they are Kosher. They argue only about [Gitin of divorce and freedom]. R. Shimon ben Gamliel says that even these are Kosher;

Inference: [R. Shimon ben Gamliel] holds that Edei Mesirah Karsei! (We do not disqualify due to the Nochri signatures, for a Get is Kosher through Edei Mesirah alone, and no one would rely on the signatures for a proof.)

Answer (Ri): [R. Shimon ben Gamliel] holds like R. Elazar [that Edei Mesirah Karsei] for Gitin [of divorce and freedom], but not for [monetary] documents, like [several] Amora'im in Gitin (86b).

Question: This is difficult, for he said "even these are Kosher", which connotes that he holds like this also for other documents!

Answer: We must say that he addresses the Rabanan who argue with him. He says to them "even those you should be Machshir, since you hold that Edei Mesirah Karsei"!