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Bava Metzia Chart #6

Bava Metzia Daf 12b-20b

MAY ONE RETURN A SHTAR THAT HE FOUND IN A PUBLIC PLACE?
  (A)
THE LIABLE PARTY DENIES LIABILITY		 (B)
THE LIABLE PARTY ADMITS LIABILITY
1) SHTAR CHOV WITH ACHRAYUS No(1) R. Yochanan: No(2)
R. Elazar : Yes(3)
2) SHTAR CHOV WITHOUT ACHRAYUS R. Yochanan: No(1)
R. Elazar : Machlokes(4) 		R. Yochanan: Machlokes(5)
R. Elazar : Yes(6)
3) GET, SHTAR SHICHRUR No(7) Yes(8)
4) DAITIKI No(7) Yes, if the one who wrote it is still alive(9)
5) SHTAR MATANAH,
SHTAR APOTIKI		 No(7) No(10)
6) SHTAR CHALITZAH, MI'UN, AND OTHER SHETAROS THAT ARE NOT USED TO COLLECT MONEY ("MA'ASEH BEIS DIN") Yes(11) Yes
7) SHTAR CHALTASA,
SHTAR ADRACHTA		 Yes(12) Yes
8) SHTAR CHOV THAT IS MEKUYAM, GET THAT IS MEKUYAM(13), AND SHTAR HAKNA'AH Shmuel : Yes(14)
R. Yochanan: No(15) 		Yes(16)
9) THE SHOVER (RECEIPT)
OF A KESUVAH(17)		 No(18) Yes(19)
==========
FOOTNOTES:
==========
 (1) (13a) We do not return a Shtar Chov if the liable party (the borrower) claims that he already paid back the debt because "Chaishinan l'Pira'on"; we consider the possibility that the Shtar was already paid to be a plausible one, according to Rebbi Yochanan (see row 8:A). Shmuel argues and maintains that we do not consider it plausible that the debt was already paid back, since had it been paid, the Shtar would have been destroyed (see below, footnote #14). Nevertheless, if the borrower claims that he never wrote a Shtar in the first place and that this Shtar is a forgery, he is believed, since the Shtar that was found is not Mekuyam. Even if the lender later brings testimony to be Mekayem the Shtar we do not rely on the testimony, because the fact that the Shtar fell and was lost detracts from its authenticity (i.e. we assume that it was lost because the lender knew it was not valid and did not bother to take care of it). We suspect that it is a perfect forgery, and it fooled the witnesses. (Rashi 13a, DH Shmuel).
(2) (13b) According to Rebbi Yochanan, we do not return such a Shtar which includes Achrayus even when the borrower agrees that he owes the money, because we are concerned that the borrower wrote the Shtar with intention to borrow money and did not borrow at that time, and the lender will use the Shtar to collect from the Lekuchos unlawfully, according to Rav Asi. According to Abaye, Rebbi Yochanan was concerned that the borrower already paid back the debt and now he and the lender are conspiring to collect a second time from the Lekuchos unlawfully ("Chaishinan l'Pira'on ul'Kinunya").
(3) (13b) According to Rebbi Elazar, we are not concerned that the borrower wrote the Shtar with intention to borrow money and did not borrow it at that time, and we are also not concerned that the borrower paid back already and is now conspiring with the lender. See Charts #4 and #5.
(4) (13b) According to the Chachamim, we do not return this Shtar, as mentioned above (#1). According to Rebbi Meir, any Shtar Chov which does not include Achrayus is not a valid Shtar, and thus it may be given back to the lender (for him to use as a bottle stopper). (See Chart #5, footnote 7.)
(5) (13b) According to the Chachamim, we do not return this Shtar, as mentioned above (#2). Even though it does not include Achrayus, it is as if it includes Achrayus because "Achrayus Ta'os Sofer." According to Rebbi Meir, we do return the Shtar, since it does not include Achrayus (and Rebbi Meir holds that "Achrayus *Lav* Ta'os Sofer"), and thus there is no fear that the lender will use it to collect from Lekuchos.
(6) (13b) According to Rebbi Elazar, everyone agrees that "Achrayus *Lav* Ta'os Sofer," and therefore there is no concern that the lender will use the Shtar to collect from Lekuchos unlawfully.
(7) (18a) We do not return these Shetaros out of concern that the husband, or master, wrote the Shtar and then changed his mind. (Since the Shtar was never given, even Abaye -- who says that a Shtar takes effect when the witnesses sign it (13a) -- agrees that the Shtar is not valid.)
(8) (19a) We return such a Shtar only when it was found immediately after it was lost, unless it was found in a place which is not frequented by many people ("she'Ein Shayaros Metzuyos"), according to Rebbi Zeira (according to one explanation of his words). According to Rabah (and Rebbi Zeira, according to another explanation of his words), even when many people frequent that place, we return the Get as long as it is not known for certain that there are two people by the same name in one city. Even if there are two people by the same name, we return the Get if the witnesses who signed the Get testify that they only signed one Get for this name (Rebbi Yirmiyah), or the person (Shali'ach) who lost the Get identifies it with a Siman Muvhak, such as a small hole next to a particular letter (Rav Ashi, 18b).
Why, though, is there not a concern that the husband or master wrote the Get or Shichrur in Nisan and did not give it until Tishrei? If the husband (or master) then sold the property of his wife (or Eved) before Tishrei, his wife (or Eved) will use the Get to collect from Lekuchos unlawfully, claiming that she received it in Nisan? The Gemara answers that we are not afraid of this happening, because the Lekuchos know that the Get fell and was lost. This will make the suspicous of the Get, and they will guess that it may not have been given until Tishrei and make such a claim in Beis Din and win the case. Even though we do not assume that the Lekuchos will make such a claim with other types of Shetaros (that have Achrayus), that is because they reason that if Beis Din returned the lost Shtar to the lender, then it must have been because Beis Din clarified the matter and found that the Shtar was totally accurate and that nothing was amiss. In the case of a Get or Shichrur, though, the Lekuchos will not assume that the Beis Din clarified all of the details of the Shtar, but rather that Beis Din returned the Shtar merely in order for the woman or Eved to have proof that she was divorced or that he was freed, and therefore the Lekuchos will claim that the Get was not given until Tishrei (19a).
(9) (19b) If the Shechiv Mera who wrote it is still alive, then there is nothing to be concerned about, because he, anyway, is able to retract the gift and to give it to someone else. However, if he has already died, we do not return the Shtar based on the admission of his son. The reason for this is because we are concerned that the father wrote the Daitiki and then changed his mind and did not give it. The son is now attempting to conspire by saying that the Daitiki was given (in his father's lifetime), in order for the would-be recipient of the Daitiki to be able to collect the property from whoever bought it -- legally -- from the son after the father's death.
(10) (19b) This follows the view of Rashi (DH Kama Zachah), who explains that with regard to Matanah, even if the giver says, "Give it," we do not give it, because we are concerned that he changed his mind and decided not to give it and now he and the originally-intended recipient are conspiring to collect the item unlawfully from the second, legal recipient. That is, the giver wrote a Shtar Matanah intending to give a gift to Reuven, and then he changed his mind and never gave the Shtar, but instead he gave the gift to Shimon, writing to him a Shtar Matanah (that was dated after the original Shtar which he decided not to use). Then, the giver decided that he wants to retract the gift that he gave to Shimon, and so he makes a "Kenunya:" he tells us that he gave the original Shtar to Reuven, who lost it. Since the date written in that Shtar precedes the date in the second Shtar, Reuven will collect the gift unlawfully from the legal recipient. (This also seems to be the concern with regard to returning a Shtar Apotiki, see Beraisa at the end of 19a.)
Tosfos (DH v'Ha), however, writes that our Mishnah implies that we *do return* a Shtar Matanah when the giver admits that he gave it. The reason we return it is because the Mishnah is discussing a case where the giver explicitly stipulated when he gave the gift that he retains the right to retract it at any time until his death. When the Beraisa says that we do *not* return a Shtar Matanah even when the giver says "Give it," it is referring to a normal Matanah, without such a stipulation.
(11) (20a) A Shtar of "Ma'aseh Beis Din," which is not used to collect money or property at all, may be returned, because there is no concern that one wrote it and then decided not to give it since Beis Din only writes such Shetaros for acts that already took place. Neither is there a concern that the Shtar was already paid, because there is no obligation or debt involved in such Shetaros (Rashi).
(12) (16b) These are Shetaros written by Beis Din for a lender, authorizing him to confiscate the property of the borrower as repayment for the loan. They are included in "Kol Ma'aseh Beis Din" mentioned in the Mishnah (20a). Even though they are able to be used for collecting (such as when the lender took the borrower's property, and then the borrower paid money to the lender in order to receive his property back -- otherwise known as "Shuma Hadar"), nevertheless we are not afraid that the borrower paid took back his property (even according to Rebbi Yochanan, see 8:A), because if the borrower had bought back his land from the lender, he should have written a new Shtar recording the re-acquisition of his land. If he did buy back his land and failed to write a new Shtar, then it is he who caused the loss to himself.
(13) So writes Rashi (18b, DH Kol Ma'aseh Beis Din) -- a Get Mekuyam is like a Shtar Mekuyam and may be returned to the Shali'ach. (See Tosfos there, DH Nafak.)
(14) (16b) Shmuel holds that we do not suspect that the debt in the Shtar was paid already. We are also not concerned that the borrower wrote the Shtar with intention to borrow and then he did not borrow, because the Shtar has the Kiyum of Beis Din (as in footnote 11 above), and it is the lender who is Mekayem the Shtar (after it has come into his possession) and not the borrower (before he gives it), as the Gemara implies on 20b. So writes Tosfos ha'Rosh (16b) and other Rishonim. Rashi (16b DH Kol Ma'aseh Beis Din) writes a different reason that we are not concerned that the borrower wrote the Shtar with intention to borrow and then he did not borrow: Beis Din is not Mekayem a Shtar except in the presence of the defendant, and thus it can be assumed that the borrower agreed to the Kiyum of the Shtar (see Maharsha).
(15) (16b) Rebbi Yochanan holds that we must suspect that the debt in the Shtar was paid already. However, if the date (of Beis Din's Kiyum) of the Shtar was the same as the date on which it was found, then we do return it, for in such a case we do not suspect that the debt has been paid back already, for people do not pay back their loans on the day that the receive them (17a).
(16) This is because we are not concerned that he wrote the Shtar with intention to borrow money and he did not borrow the money (as in footnote 14 above). (However, according to Abaye on 13a, the Shtar may not be returned, for we must suspect that it was paid and now the borrower and lender are conspiring, since the Shtar includes Achrayus.)
(17) This Shover is akin to a Shtar Mechilah, in which the woman writes to her husband that with the transfer of this document, she hereby pardons the debt of her Kesuvah. This Shover does *not* refer to a formal receipt, in which she writes that she has already received the payment of the Kesuvah from her husband, or that she has already pardoned the debt (Ritva 19b). Therefore, we must be concerned that perhaps she wrote it but did not give it to her husband, and the Kesuvah has not yet been pardoned (as below, in footnote 18).
(18) (18a) We suspect that perhaps she wrote the Shover in order to pardon the debt of her Kesuvah, and then she did not give the Shover to her husband and did not pardon the Kesuvah at all.
(19) (19b) Why, though, are we not concerned that perhaps she wrote this document to pardon the debt of her Kesuvah in Nisan, and she did not give it until Tishrei? When she sells her Kesuvah (that is, the Tovas Hana'ah, or the right to collect her Kesuvah in the event that she is divorced or widowed), after Nisan and before Tishrei, her husband will be able to use the Shover that she gives to him in Tishrei, in which the date written is the previous Nisan, to collect unlawfully from the one who bought the rights to her Kesuvah? (See above, footnote 8, for a similar situation.) Rava answers that we are not concerned for this because even if the woman indeed pardoned her Kesuvah *after* selling it to a buyer, her pardon is effective and the debt of the Kesuvah is canceled. Abaye answers that we are not concerned for such a situation, since the Kesuvah becomes canceled from the very moment that the witnesses *sign* the Shover (in Nisan, before the Kesuvah was sold), for Abaye maintains that "the signatures of witnesses make the document take effect."

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