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Bava Metzia, 13

1) ACCEPTING THE BORROWER'S WORD WHEN IT WILL CAUSE A LOSS TO OTHERS

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, because the Shtar will give him the ability to collect the property of Lekuchos which they bought from the Loveh after the Shtar was written. If the Shtar does not include Achrayus, then the finder may give it back to the Malveh (according to Rebbi Meir), because it 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 agrees that he owes the money, then why can 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 there is no Achrayus in the Shtar? The Malveh might use the Shtar to collect from the Nechasim B'nei Chorin of the Loveh unjustly (since the Loveh denies owing the money)!

Abaye (13a) answers that the Mishnah is discussing a case in which the Loveh admits that he owes money. Why, then, is it prohibited for the finder to 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" -- we are afraid 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. The Malveh will then be able to use the Shtar to collect the property from the Lekuchos, and then he will split the profits with the Loveh. This is why one may not give back to the Malveh a Shtar with Achrayus that he finds, even when the Loveh says that the Shtar is valid.

This implies (as the Gemara asks on Abaye before it knows the reasoning of "Chaishinan l'Pira'on ul'Kinunya") that had we 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 we accept "Hoda'as Ba'al Din," the debtor's own admission), and we would give the Shtar back to the Malveh.

This poses a problem to those opinions (see ROSH, Kesuvos 19a, KETZOS HA'CHOSHEN 99) that maintain that "Hoda'as Ba'al Din" is *not* accepted when it will cause a loss to others -- "b'Makom she'Chav l'Acherim." This is because a person's word is accepted only to obligate himself; his word is not accepted in order 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 from whom the Malveh will now be able to collect the debt! Why, then, would we 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. When we say that one's admission cannot be used to cause others a loss, this applies only to testimony about monetary matters. "Hoda'as Ba'al Din," which is not a proper testimony, but which 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, applies only with regard to monetary matters. The case of our Gemara, however, is not judged as a monetary case, but rather it is viewed primarily as a case of "Hashavas Aveidah," returning a lost item (i.e. the Shtar). The question at hand 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 is acceptable (see RAN in Chulin 96a), such as the Loveh's own admission, to allow us to return the Shtar to the Malveh.

The reason for this is explained by RAV SHIMON SHKOP zt'l (in SHA'AREI YASHAR, Sha'ar 6). Returning a lost object is not viewed as a monetary matter, because from the point of view of monetary law, the ruling is that whenever there is a claim of certainty ("Bari") versus a claim of uncertainty ("Shema"), where no one is Muchzak (in possession of the item in doubt), the one with the claim of "Bari" prevails. Rather, in the case of Hashavas Aveidah, the only matter that needs clarification is whether the person claiming to be the rightful owner of the object is telling the truth (Bava Metzia 27b), and for this the testimony of a single witness suffices, as does "Hoda'as Ba'al Din." Therefore, were it not for the concern that the Loveh and Malveh are conspiring, we would return the Shtar to the Malveh based on the Loveh's admission, because his admission clarifies to us the doubt at hand (whether the Malveh is telling the truth or not). 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. Alshech)

13b

QUESTION: The Mishnah (12b) records a Machlokes between Rebbi Meir and the Rabanan regarding returning a lost Shtar to the Malveh. When one finds a Shtar Chov which includes Achrayus, both Rebbi Meir and the Rabanan agree that the finder may not give it back to the Malveh, because he might use the Shtar unjustly to collect the property of the Lekuchos which they bought from the Loveh after the Shtar was written. If the Shtar does not include Achrayus, then 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 agrees that he owes the money, then why can the finder not give the Shtar back to the Malveh even 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 there is no Achrayus in the Shtar? The Malveh might use the Shtar to collect from the Nechasim B'nei Chorin of the Loveh unjustly (since the Loveh denies owing the money)!

Rebbi Elazar here answers that the Mishnah is discussing a case in which the Loveh *denies* owing the loan written in the Shtar. The reason why Rebbi Meir allows the Shtar to be returned to the Malveh when it has no Achrayus is because a Shtar without Achrayus is worthless; it cannot be used to collect from Nechasim Meshu'abadim, *nor* from Nechasim B'nei Chorin. The Rabanan argue and maintain that such a Shtar may be used to collect from Nechasim B'nei Chorin, and therefore it may not be returned to the Malveh.

When, however, 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 is of the opinion that we do not suspect the Loveh and Malveh of conspiring together to cheat the Lekuchos (we are not "Chaishinan l'Pira'on ul'Kinunya;" see previous Insight). (Rebbi Elazar understands the Mishnah (12b) like Shmuel (13a) understands it.)

Even though Rebbi Elazar maintains that we are not "Chaishinan l'Pira'on ul'Kinunya," why, though, is he not concerned that perhaps the Loveh wrote the Shtar in Nisan and did not borrow the money until Tishrei? We should not return the Shtar to the Malveh, because perhaps it is a "Shtar Mukdam," which could be used unjustly to collect from Lekuchos!

ANSWERS:

(a) The ROSH (cited by the Shitah Mekubetzes) answers that Rebbi Elazar holds that we do not suspect that the Shtar was written without the presence 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 holds like Abaye, who says (13a) that when the witnesses sign the Shtar, the Shtar takes effect, such that the property of the Loveh is immediately collateralized to the Malveh, even if the loan itself does not take place until later, and thus there is no problem of "Shtar Mukdam." Rebbi Elazar is adding that there is not even a problem of "Chaishinan l'Pira'on ul'Kinunya."

The Rosh adds that it is logical to say that Rebbi Elazar holds like Abaye in this regard, because if he held like Rav Asi (that when the witnesses sign the Shtar, it does not immediately take effect), then he should have said explicitly that we are not concerned that the Shtar was written in Nisan when the loan took place only later in Tishrei, just like he explains that we are not "Chaishinan l'Pira'on ul'Kinunya."

(c) The RITVA cites RABEINU TAM who answers that Rebbi Elazar holds that the Mishnah is referring to a Shtar Hakna'ah (a Shtar in which the Loveh gave to the Malveh the rights to his property from the day of the writing of the Shtar, regardless of whether he receives the loan from him or not), and 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 maintains that the Mishnah is referring to a Shtar Hakna'ah, then the Rabanan should agree with Rebbi Meir that even when the Loveh *denies* owing the money, we should give the Shtar back to the Malveh! We do not suspect that there is a conspiracy between the Loveh and Malveh, and nor are we concerned that the Shtar is a Shtar Mukdam, since it is a Shtar Hakna'ah!

The Ritva answers that the reason why the Rabanan do not permit the Shtar to be returned to the Malveh when the Loveh denies owing money is because we indeed are concerned that the Loveh paid back the debt, for he claims that he did. In contrast, when the Loveh admits that he owes the money, we are not concerned that he paid back the debt and is now conspiring with the Malveh to cheat the Lekuchos. (I. Alshech)