QUESTION: The Mishnah (12b) states that when one finds a Shtar Chov which includes Achrayus, the finder may not give it back to the Malveh (lender) because the Shtar will give him the ability to collect the property which Lekuchos (purchasers) bought from the Loveh (borrower) after the Shtar was written. If the Shtar does not include Achrayus, the finder may give it back to the Malveh (according to Rebbi Meir) because such a Shtar cannot be used to collect from Lekuchos. The Gemara questions what case the Mishnah is discussing. If it is discussing a case in which the Loveh admits that he owes the money, then why may the finder not give the Shtar back to the Malveh when it includes Achrayus? If, on the other hand, the Loveh denies that he owes money, then why can the finder give the Shtar back to the Malveh when it includes no Achrayus? The Malveh might use the Shtar to collect from the Nechasim Bnei Chorin of the Loveh unjustly (since the Loveh denies that he owes the money).

Abaye (13a) answers that in the case of the Mishnah, the Loveh admits that he owes money. Why, then, may the finder return the Shtar to the Malveh when the Shtar contains Achrayus? After all, the Loveh admits that the Shtar is valid. Abaye answers that "Chaishinan l'Pira'on ul'Kinunya" -- Beis Din is concerned that the Loveh already paid back his debt, received the Shtar in return, lost it, and now is attempting to conspire with the Malveh to cheat the Lekuchos out of their money by claiming that he did not yet repay the loan and that the Shtar is still valid. If Beis Din permits the finder to return the Shtar to the Malveh in such a case, the Malveh will be able to use the Shtar to collect the property from the Lekuchos and he will split the profits with the Loveh. This is why the finder may not give back to the Malveh a Shtar with Achrayus, even when the Loveh admits that the Shtar is valid.

This implies (as the Gemara asks on Abaye before it presents the issue of "Chaishinan l'Pira'on ul'Kinunya") that had the Chachamim not been afraid that the Loveh and Malveh are conspiring together, the Loveh would be believed to say that he did not yet pay back the loan (because Beis Din accepts "Hoda'as Ba'al Din," the debtor's own admission), and the Shtar would be given back to the Malveh. This inference contradicts the opinion that "Hoda'as Ba'al Din" is not accepted when it will cause a loss to others -- "b'Makom she'Chav l'Acherim." (See ROSH to Kesuvos 19a, and KETZOS HA'CHOSHEN 99.) This is because a person's word is accepted only to obligate himself; his word is not accepted to obligate others. Here, the Loveh's admission that he owes the money will cause a loss to others -- to the Lekuchos who purchased his property and from whom the Malveh now will be able to collect the debt. Why, then, would Beis Din accept the Loveh's admission and return the Shtar to the Malveh if not for the problem of "Chaishinan l'Pira'on ul'Kinunya"?

ANSWER: RAV SHMUEL ROZOVSKY zt'l (in Shi'urim to Gitin 2a, and in Chidushim to Gitin #21-22) explains as follows. "Hoda'as Ba'al Din" is not a proper testimony and is accepted only because of a Gezeiras ha'Kasuv that teaches that one's word is believed ("k'Me'ah Edim Dami") to obligate himself. However, the concept of "Hoda'as Ba'al Din" applies only with regard to monetary matters. Hence, its limited effectiveness (to a case where it does not cause a loss to others) also applies only to testimony about monetary matters. The case of the Gemara here, however, is not judged as a monetary case, but rather is viewed primarily as a case of "Hashavas Aveidah," returning a lost item (i.e. the Shtar). The question in this case is whether the Shtar that was found may be returned to the Malveh or not. The testimony of witnesses is not necessary in such a case (as it is necessary in a case of a monetary matter), but rather any clear indication, such as the Loveh's own admission, suffices (see RAN in Chulin 96a) to permit the return of the Shtar to the Malveh. Since the return of the Shtar is not based on the normal concept of "Hoda'as Ba'al Din," it is also not subject to the usual limitation of "Hoda'as Ba'al Din." Thus, the Loveh's admission is effective even though it will cause a loss to the Lekuchos.

This is explained further by RAV SHIMON SHKOP zt'l (in SHA'AREI YOSHER 6). The return of a lost object is not viewed as a monetary matter, because from the point of view of monetary law whenever there is a claim of certainty ("Bari") versus a claim of uncertainty ("Shema") and no one is Muchzak (in possession of the item in doubt), the one with the claim of "Bari" prevails. In a case of Hashavas Aveidah, the only matter that needs clarification is whether the person who claims to be the rightful owner of the object is telling the truth (Bava Metzia 27b). The testimony of a single witness suffices for this, as does "Hoda'as Ba'al Din." Therefore, if not for the concern that the Loveh and Malveh are conspiring, the Shtar would be returned to the Malveh based on the Loveh's admission, because his admission clarifies the doubt at hand (whether or not the Malveh is telling the truth). The fact that returning the lost object to its owner might cause the Lekuchos to suffer a loss is not relevant, because that is only a secondary, indirect result of accepting the Loveh's word with regard to the Hashavas Aveidah. (See also CHIDUSHEI HA'GRIZ HA'LEVI to the Rambam, Hilchos Aveidah 18:14.) (I. Alsheich)

QUESTION: The Mishnah (12b) records a dispute between Rebbi Meir and the Rabanan regarding returning a lost Shtar to the Malveh. When one finds a Shtar Chov which includes Achrayus, Rebbi Meir and the Rabanan agree that the finder may not give it back to the Malveh, because the Malveh might use the Shtar to collect unjustly the property of the Lekuchos which they purchased from the Loveh after the Shtar was written. If the Shtar does not include Achrayus, the finder may give it back to the Malveh, because it cannot be used to collect from Lekuchos.

The Gemara (12b) questions what case the Mishnah is discussing. If it is discussing a case in which the Loveh admits that he owes the money, then why is the finder not permitted to give the Shtar back to the Malveh when it includes Achrayus? If, on the other hand, the Loveh denies that he owes money, then why is the finder permitted to give the Shtar back to the Malveh when it includes no Achrayus? The Malveh might use the Shtar to collect from the Nechasim Bnei Chorin of the Loveh unjustly (since the Loveh denies that he owes the money).

Rebbi Elazar answers that in the case of the Mishnah, the Loveh denies that he owes the loan written in the Shtar. The reason why Rebbi Meir allows the finder to return the Shtar to the Malveh when it has no Achrayus is that a Shtar without Achrayus is worthless; it cannot be used to collect from Nechasim Meshubadim or from Nechasim Bnei Chorin. The Rabanan disagree and maintain that such a Shtar may be used to collect from Nechasim Bnei Chorin, and therefore it may not be returned to the Malveh.

However, when the Loveh admits that he owes the money as written in the Shtar, Rebbi Elazar says that both Rebbi Meir and the Rabanan agree that the Shtar may be returned to the Malveh even when the Shtar includes Achrayus. Rebbi Elazar maintains that the Loveh and Malveh are not suspected of conspiring together to cheat the Lekuchos (Beis Din does not suspect "Pira'on ul'Kinunya"; see previous Insight). (Rebbi Elazar understands the Mishnah (12b) as Shmuel (13a) understands it.)

Although Rebbi Elazar rejects the notion of "Chaishinan l'Pira'on ul'Kinunya," why is he not concerned that perhaps the Loveh wrote the Shtar in Nisan and did not borrow the money until Tishrei? The Shtar should not be returned to the Malveh because perhaps it is a "Shtar Mukdam" which could be used to collect unjustly from Lekuchos.

(a) The ROSH (cited by the Shitah Mekubetzes) answers that according to Rebbi Elazar, there is no reason to suspect that the Shtar was written in the absence of the Malveh and without the loan taking place at that time (as the Gemara says on 13a when it questions Rav Asi's answer).

(b) TOSFOS and the ROSH answer further that Rebbi Elazar agrees with the position of Abaye, who says (13a) that a Shtar takes effect immediately when witnesses sign it, such that the property of the Loveh becomes collateralized immediately to the Malveh, even if the loan itself does not take place until later. There is no problem of "Shtar Mukdam" since the property that was sold before the actual loan is indeed subject to collection by the Malveh. Rebbi Elazar adds only that there is not even a problem of "Chaishinan l'Pira'on ul'Kinunya."

The Rosh adds that it is logical to assume that Rebbi Elazar agrees with Abaye in this regard, because if he agrees with Rav Asi's position (that when the witnesses sign the Shtar it does not immediately take effect), he should say explicitly that there is no concern that the Shtar was written in Nisan but the loan took place only later in Tishrei, just as he explains that there is no issue of "Chaishinan l'Pira'on ul'Kinunya."

(c) The RITVA cites RABEINU TAM who answers that Rebbi Elazar understands that the Mishnah refers to a Shtar Hakna'ah (a Shtar in which the Loveh gave the Malveh the rights to his property from the day the Shtar was written, regardless of whether or not he ultimately receives the loan). Therefore, even if the Shtar was written in Nisan and the money was borrowed only in Tishrei, the Shtar is not a "Shtar Mukdam" and the Malveh may use it legally to collect from the Lekuchos.

The Ritva questions this explanation. If Rebbi Elazar understands that the Mishnah refers to a Shtar Hakna'ah, the Rabanan should agree with Rebbi Meir that even when the Loveh denies that he owes the money, the Shtar should be returned to the Malveh. After all, Rebbi Elazar neither suspects that there is a conspiracy between the Loveh and Malveh nor is concerned that the Shtar is a "Shtar Mukdam," since it is a Shtar Hakna'ah.

The Ritva answers that the Rabanan do not permit the Shtar to be returned to the Malveh when the Loveh denies that he owes money because they indeed are concerned that the Loveh paid back the debt. Since the Loveh claims that he paid the debt, the Rabanan maintain that it is a valid concern. In contrast, when the Loveh admits that he owes the money, they are not concerned that he paid back the debt and is now conspiring with the Malveh to cheat the Lekuchos. (I. Alsheich)