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Bava Basra, 165

165b

QUESTION: The Mishnah (160a) says that a Shtar Mekushar that has only two witnesses signed on it is Pasul (because one of laws of a Shtar Mekushar is that it must be signed by at least three witnesses), while a normal Shtar that has only one witness signed on it is Pasul. The Gemara here asks that it is obvious that such a Shtar is Pasul, because the Torah requires two witnesses in all matters of testimony. Ameimar answers that the Mishnah is teaching that just like a normal Shtar is Pasul mid'Oraisa when it has only one witness signed on it, so, too, a Shtar Mekushar is Pasul mid'Oraisa when it has only two witnesses signed on it.

What does the Gemara mean that a Shtar Mekushar is Pasul mid'Oraisa when it has only two witnesses signed on it? A Shtar Mekushar itself is only an enactment of the Rabanan, as the Gemara says earlier (160b)!

ANSWERS:

(a) The RAMAH and RITVA answer that mid'Oraisa, a Shtar Mekushar was not a valid Shtar (because the witnesses are signed on the back of the Shtar, and not below the text of the Shtar), and it was the Rabanan who enacted that it may be used. Consequently, if the requirements of the Rabanan (such as having three witnesses sign it) are not met, then the Shtar is not valid at all, and it is indeed Pasul mid'Oraisa. (See also RAMBAN to 160a.)

(b) The RASHBAM seems to hold that a Shtar Mekushar is a valid Shtar, mid'Oraisa. This is because the Torah gives the power to the Chachamim to define what a Shtar is, and it then has the status of a Shtar d'Oraisa. This has two implications. First, if a Shtar Mekushar is valid mid'Oraisa, it is able to create some effect d'Oraisa (such as a divorce in the case of a Get Mekushar, or a Shi'abud Nechasim in the case of a Shtar Chov Mekushar). Second, the witnesses that are signed on it serve as valid testimony, a proof, to what occurred.

When the Rabanan invalidated such a Shtar that has only two witnesses, that Pesul is really only a Pesul d'Rabanan since, mid'Oraisa, the Shtar is valid with two witnesses. The Rabanan, though, gave such a Shtar the stringency of a Pesul d'Oraisa so that it cannot create the desired effect. Thus, if a man gives his wife a Get Mekushar that has only two witnesses on it, the woman is not divorced and needs another Get. Similarly, if a debtor writes a Shtar Mekushar for his creditor, the creditor cannot use it to collect a debt from Nechasim Meshu'abadim. This is what the Gemara means when it says that such a Shtar is Pasul mid'Oraisa.

However, since the Shtar has two witnesses signed on it, it remains valid mid'Oraisa with regard to serving as testimony to what occurred. Thus, in the case of a Shtar Chov, the creditor would be able to use such a Shtar as proof that the debtor borrowed money from him, and he would be able to collect the money on the basis of this Shtar from Nechasim Benei Chorin, as the Rashbam here (end of DH u'Meshani) says (and not the way Tosfos cites the Rashbam). This is also the ruling of the PISKEI HA'RID and RI'AZ.

RABEINU GERSHOM also explains that when the Gemara says that a Shtar Mekushar with two witnesses is Pasul mid'Oraisa, it means that the Rabanan decreed that it be treated like a Pesul d'Oraisa, so that if the creditor who is holding such a Shtar seizes property from the debtor's Nechasim Meshu'abadim, we do not say that, b'Di'eved, he may keep it, but rather we force him to return it as if the Shtar was completely Pasul.

(c) TOSFOS (DH Hacha Nami) also says that the Pesul of a Shtar Mekushar with two witnesses is only a Pesul mid'Rabanan. The Gemara calls it a Pesul mid'Oraisa in order for people to treat it stringently, like a Pesul d'Oraisa, so that in the case of a normal Shtar that is Pasul (with a real Pesul d'Oraisa), people will treat it as a real Pesul d'Oraisa and not be lenient with it (for example, so that they will treat, as a Mamzer, any child born to a woman from a second husband after she received from her first husband such a Get that was Pasul).