What day is today? Tuesday? We’ll figure it out. Is today kuf ayin bet (one hundred seventy-two)? It’s kuf ayin vav (one hundred seventy-six), no? Friday, Saturday, Sunday, Monday, Tuesday. Tuesday, Sanhedrin (tractate Sanhedrin). Tuesday, Sanhedrin.
Okay, rabotai (gentlemen). What did we say in the Mishnah? We said that everybody agrees we’re not choshesh (concerned) that the shtar (document) fell from one person and was picked up by that same person with the same name. We’re talking about a place where there are two people named Yosef ben Shimon. So we said: Is Yosef ben Shimon allowed to borrow from somebody? We said he is. The Mishnah held that Yosef ben Shimon can borrow from somebody, even though you could say the other person might tell him, “Hey, you’re not the Yosef ben Shimon; it’s the other Yosef ben Shimon.” Maybe the real Yosef ben Shimon, the one I’m owed money by, dropped the shtar, and you picked it up, and you’re… We’re not choshesh for that. Although we’re generally choshesh for nefilah (a lost item), we’re not choshesh for a nefilah of a yechidi (single individual)—that the person will drop it and then someone with the same name will find it. Therefore, Yosef ben Shimon can borrow from a person without having to worry about anything. Right? That’s what we said at the end of yesterday’s daf (page).
Abaye says, “L'nefilah d'chad lo chayishinan, nefilah d'rabbim chayishinan” (We are not concerned about one person’s loss; we are concerned about a loss involving many people). That was Abaye’s understanding. So the Gemara says—and that’s why, by the way, Yosef ben Shimon can borrow, or Yosef ben Shimon can give a shtar to somebody and say, “You owe me money.” “All right, there’s another Yosef ben Shimon in town.” The bottom line is: “I’m holding the shtar. I’m not choshesh that the other person dropped it and I have the shtar. Pay it.” That’s what we said from our Mishnah.
A baraita (early rabbinic teaching), however, looks at it differently. “Veha detanya” (but it was taught in a baraita): “Keshem she'ein motzi'im shtar chov zeh al zeh, kach ein motzi'im al acherim” (Just as they do not produce a loan document against one another, so they do not produce one against others). The baraita says that just as two people named Yosef ben Shimon cannot present shtarot against each other—clearly, because who is the malveh (lender) and who is the loveh (borrower)? Each person will come along and claim, “I’m the malveh; you owe me the money.” “No, you owe me the money.” So, too, this baraita says that Yosef ben Shimon cannot present a shtar against anybody else, even if there’s another Yosef ben Shimon in town.
Now, what do you mean? If you’re not choshesh for nefilah, what could the problem be? If you’re not choshesh for nefilah, as we just learned, then if I’m holding the shtar, it’s my shtar. I understand there’s another Yosef ben Shimon, so what? It didn’t fall from him for me to pick up; we’re not choshesh for nefilah. So “b'mai ka'mipalgei” (what are they arguing about)? What is the machloket (dispute) here between the baraita and the Mishnah? Obviously, the Mishnah holds one way and the baraita holds another. Why does the Mishnah say I’m allowed to present the shtar if I’m Yosef ben Shimon, while the baraita says I cannot present it?
The Gemara says they are arguing about whether otiyot niknot b'mesirah (written documents are acquired through delivery). How do I give over a shtar? If I want to give you my shtar, I’m owed money and I want to give you the right to collect that money for yourself. So the question is: How do I makneh (transfer ownership) a shtar to you? Do I need a kinyan (formal act of acquisition) for the shtar, or do I just give it to you? There’s a machloket over whether otiyot niknot b'mesirah. Can I give you the shtar and say, “Here, I give it to you”? I can give you a cup b'mesirah (by delivery), but can I give you—I don’t—the shtar itself is nothing; I need to give you the words on the shtar, the debt. So there’s a machloket: Are “otiyot niknot b'mesirah”? Or do I need a separate kinyan to be makneh the words to you?
“Be'otiyot niknot b'mesirah, Tanna didan savar otiyot niknot b'mesirah” (Written documents are acquired through delivery; the author of our Mishnah holds that written documents are acquired through delivery). If you say “otiyot niknot b'mesirah,” beautiful. According to the Tanna (teacher) of our Mishnah, I’m Yosef ben Shimon, and there’s another Yosef ben Shimon in town. One of two things happened: either this is my shtar, so there’s no problem, or the other Yosef ben Shimon gave it to me. So, mimah nafshach (whichever way you look at it), we’re not choshesh for nefilah, right? Our Mishnah is not choshesh for nefilah. One of two things happened: either I’m the original person, or the other Yosef ben Shimon gave it to me, and “otiyot niknot b'mesirah”; therefore, mimah nafshach, I can collect.
The other shitah (view) says, “Tanna bara savar.” Tanna bara means the Tanna of the baraita. “Ein otiyot niknot b'mesirah” (written documents are not acquired through delivery). So if “ein otiyot niknot b'mesirah,” how did you get the shtar? Look at Rashbam: “VeTanna bara savar, ein otiyot niknot b'mesirah, u'mitoch kach, yidcheh haloveh lazeh, veyomar, pikadon hu etzlecha, velazeh yomar, ein hashtar beyadecha” (The author of the baraita holds that documents are not acquired through delivery; therefore, the borrower will dismiss one person by saying, “It is a deposit in your possession,” and tell the other, “The document is not in your hand”).
“Umihu” (however), I’ll come along and say that this shtar over here isn’t yours. You’re not the person named, so what is it doing in your hand? He gave it to you to watch. He’s the other person; it’s a pikadon (deposit) in your hand. “Ein otiyot niknot b'mesirah,” so the fact that he gave it to you means nothing. What did he give it to you for? Stam (plainly), it’s a pikadon. Since he gave it to you as a pikadon, you can’t collect on the other person’s shtar. That’s why the baraita says that they cannot even present a shtar: a Yosef ben Shimon cannot present a shtar to somebody in town. If we say “ein otiyot niknot b'mesirah,” the person can always say, “What are you holding the shtar for?” If you say “otiyot niknot b'mesirah,” then mimah nafshach, I say either it’s my shtar, or, if he gave it to me, it’s mine too.
So you’re always giving a borrower a way out to… That’s right, that’s right. In any case where there are two people named Yosef ben Shimon—any time there are two… That’s the baraita. That’s why the baraita says not to do it, not to lend. The baraita is saying not to lend because you’re going to have this problem and won’t be able to collect. So they’re killing the borrowers? No, they’re saying, “Don’t lend; don’t do it.” If you’re a Yosef ben Shimon and there’s another person with that name in town, don’t lend money, because you’re going to have a hard time collecting. That’s all it’s saying.
Then it says, “Ve'iba'it eima” (and if you wish, say): another answer, “d'kulei alma otiyot niknot b'mesirah.” The second answer says that everybody—the Mishnah and the baraita—holds “otiyot niknot b'mesirah.” You can give over a shtar to another person and it becomes his shtar; you don’t need to make a separate kinyan. “Vehacha b'tzarich lehavi re'ayah ka'mipalgei” (and here they disagree about whether proof must be brought). The question is whether the machzik (holder) of the shtar has to bring a re'ayah (proof) that it’s his chov (debt). “Tanna didan savar ein tzarich lehavi re'ayah.” Our Tanna holds that he need not bring proof. So when Yosef ben Shimon is holding the shtar, he can collect it, even though there’s another Yosef ben Shimon named in the document, because the bottom line is that the biggest proof is, “I’m holding the shtar.” I don’t have to bring proof that I’m the Yosef ben Shimon in the shtar; I’m holding it.
“VeTanna bara savar tzarich lehavi re'ayah” (the author of the baraita holds that he must bring proof), which means he cannot collect until he actually proves it. Look at the Rashbam: “Iba'it eima d'kulei alma otiyot niknot b'mesirah,” without a bill of sale. You don’t have to sell the shtar; someone just gives it to you and it’s considered yours. “Belo shtar, u'chemo shekatav b'Perek HaMocher et HaSefinah (the chapter 'One Who Sells a Ship')”, “k'Rebbi, otiyot mili ninhu, mili b'mili...” (as Rebbi says, letters are mere words). “Ach re'ayah b'eidim tzarich shemasru lo lazeh bifneihem” (but proof by witnesses is required that they transferred it to him in their presence). You need proof that this happened. “Otiyot niknot b'mesirah,” but you need proof that there was a mesirah (transfer). “Delo neima pikadon hu” (so that we do not say it is a deposit) in his possession, “o shema naflu mimenu” (or perhaps it fell from him). “Behachi palgei matnitin (our Mishnah) veTanna bara.” So the Tanna of the Mishnah says: Once I’m holding the shtar, mimah nafshach, either it’s mine or the person gave it to me; “otiyot niknot b'mesirah.” What proof do you have? I don’t need proof. I’m holding the shtar. The Tanna of the baraita says, “In hachi nami” (yes, indeed), “otiyot niknot b'mesirah.” Where’s your proof? You have to prove it was given to you for collection; maybe it was given to you leshem pikadon (as a deposit). So that’s what the Tanna of the baraita says: Yosef ben Shimon, don’t lend to another person unless you’ll be able to bring proof that it was given to you. If you can’t bring proof, you won’t be able to collect. That’s the machloket between the Mishnah and the baraita.
“De'itmar,” a famous machloket we already know: “otiyot niknot b'mesirah.” Abaye said, “tzarich lehavi re'ayah” (must bring proof); Rava said, “ein tzarich lehavi re'ayah” (need not bring proof). Look, that’s the machloket about whether they have to bring proof. “Amar Abaye, mena amina lah.” How do I know here that you have to bring proof? Because Abaye’s shitah is that you have to bring proof. How do I know that a person holding a shtar without his name on it has to bring proof? If his name is on it, there’s no problem. Here there are two people named Yosef ben Shimon, so he has a problem. If I’m holding a regular shtar with my name on it and your name on it, I don’t have to bring proof; I’m holding the shtar. But here we’re talking about a shtar where there’s a question about who it belongs to. So I don’t just say, “Well, you’re holding it; that’s the biggest proof.” No! You’re holding it, very nice, but you have to bring proof that when it was given to you, it was given to you to collect. Maybe I gave it to you as a pikadon—to hold for me. So Abaye says, “tzarich lehavi re'ayah.”
What’s his proof? Even if it was a pikadon—pikadon? No, because I’m holding the shtar for you. You tell me, “Listen, you’re Yosef ben Shimon, I’m Yosef ben Shimon. Do me a favor; I don’t have a good vault in my house. This is a shtar worth a million dollars. Do me a favor, chacham Yosef ben Shimon, hold this for me.” I’m holding it for you. Beautiful. Now I come over and say, “Hey, pay me!” He says, “Pikadon!” I say, “No, it’s my name on it!” I say, “You’ve got to bring proof. Go bring me proof that he gave it to you leshem collection.” “I hachi nami” (that is indeed so), “otiyot niknot b'mesirah”; he gives it to me, I own it. The question is, did he give it to me to own? Maybe he gave it to me as a pikadon. Isn’t a pikadon collateral? Yeah. Pikadon is something to watch, just to stash, to watch. Pikadon means it’s “nifkad” (deposited). It’s “nifkad etzli” (deposited with me): keep it, watch it. Fine, I watched it. A few nights later: “Okay, chacham Yosef ben Shimon, give me my shtar back.” “Here’s your shtar back.” In the meantime, I went to collect. So Abaye says that in such a case, “tzarich lehavi re'ayah.” What is this proof?
After the following story: “Abaye amar mena amina lah detanya: echad min ha'achim” (Abaye said, “How do I know? It was taught: one of the brothers”). What happened? A person is one of the brothers and is inheriting his father’s yerushah (inheritance) along with the other brothers. “She'shtar chov yotzei mitachat yado” (a loan document is found in his possession). He has a shtar in his hand from his father. His father was owed money, and one of the brothers is holding the document. Now, how did he get it? He’s holding it in his hand. His father is dead. One of the brothers is holding a shtar showing that his father was owed money, and he’s the one holding it. He’s claiming that the money belongs to him, because the brothers will say, “Hey, that’s part of the yerushah. What are you doing with it?” So what does it say? “Alav lehavi re'ayah” (he must bring proof). He has to bring proof that the shtar was given to him.
“Mai lav hu hadin le'acharini?” (Doesn’t the same law apply to others?) That means the same law applies to all cases, not only a case involving a brother. The brother case is an example, but the Gemara assumes “hu hadin le'acharini,” meaning that whenever there’s a shtar that doesn’t have your name on it, you have to bring proof that you’re the person entitled to it.
The Gemara says no: “veRava amar shani achim d'shamtu mehadadi” (Rava said, “Brothers are different because they seize from one another”). Brothers are different; brothers grab from each other. The yerushah comes, and everybody is grabbing things. So when it comes to brothers, you have to prove that you’re the person entitled to it. But ordinarily, when another person comes, why would I grab something from you? I have this shtar in my hand; I don’t have to bring proof. Only when there’s a chashash (concern) involving brothers do they have to bring proof. That’s how Rava will answer: “Don’t bring me proof from brothers! Brothers are different!” Abaye wants to argue that it applies to every case: the same name, two people named Yosef ben Shimon, or I’m holding a shtar that doesn’t have my name on it, but I have it in my hand. You see the case of the brothers. But the brothers, of course, need proof because the derech (way) is to grab from each other. “Mah she'ein ken” (which is not the case) in an ordinary case, where you’re holding it.
The Gemara says, “Ika de'amrei” (some say), the other way: “Amar Rava mena amina lah detanya: echad min ha'achim she'shtar chov yotzei mitachat yado, alav lehavi re'ayah; achin d'shamtu mehadadi, aval acharini lo” (Rava said, “How do I know? It was taught: one of the brothers who has a loan document in his possession must bring proof; brothers seize from one another, but others do not”). Rava brings proof that it’s only in the case of brothers that they have to bring proof, because that’s their nature. What about everybody else? No!
Abaye will answer, “No, you have no proof. The reason it brings the case of brothers is for a chiddush (novel point). Really, everybody has to bring proof. Why does it bring the case of brothers? Because I would say that maybe brothers don’t have to bring proof. Why? Since the brothers know that this person is going to grab, they’re protective. So when he ends up having it, it must be that he got it legally.” The Gemara’s ka mashma lan (it teaches us) is that no, he still has to bring proof.
“VeAbaye amar achim itztericha leih, salka da'atchach amina keivan d'shamtu mehadadi inhun mizdahar zehiri, velo tzericha le'atoye re'ayah ka mashma lan.” So we wanted to bring a proof—and Rava wanted to bring a proof from the brothers, the reverse. What’s the proof? Brothers have to bring proof, but what about everybody else? No. Abaye will say, “No! Everybody has to bring proof. The chiddush of the brothers is that you might have thought they don’t have to bring proof, because since they grab from one another, they’re careful. So if one of them is holding it, it must really belong to him. Ka mashma lan that since they seize from one another, even brothers have to bring proof; kol sheken (all the more so), other people, who aren’t careful, have to bring proof.” Fine.
“Ve'ela ha detanya,” we have a baraita: “Keshem shemotzi'im hen shtar chov al acherim, kach motzi'im zeh al zeh.” The baraita says that just as two people named Yosef ben Shimon can present shtarot against other people, so too they can present a shtar chov (loan document) against each other: “kach motzi'im zeh al zeh.” Now that’s the problem. We learned in our Mishnah that they cannot present a shtar zeh al zeh (against one another). What’s the machloket? Our Mishnah said they cannot present one against another: two people named Yosef ben Shimon each come along and say, “I’m the malveh; you’re the loveh.” Correct? But this baraita says, “No, just as they can present a shtar chov against others, so too they can present one against each other.” How can they present a document against one another? It contradicts the Mishnah. It contradicts the Mishnah.
So the Gemara says, “b'mai ka'mipalgei?” What’s the machloket? How can you say this? Why does the Mishnah say “ein zeh al zeh” (not against one another), while the baraita says yes, zeh al zeh? What’s the basis of that machloket? “B'kotvin shtar la-loveh af al pi she'ein malveh imo ka'mipalgei” (they disagree about whether a document may be written for the borrower even when the lender is not with him). Can you write a shtar for the loveh even though the malveh isn’t there? The loveh goes to the sofer (scribe) and says, “Do me a favor, write a shtar saying I owe…” That’s not—“Sorry, write a shtar saying I owe $1,000 to this person over here, that so-and-so borrowed the money and owes $1,000.” Where’s the malveh? What does the loveh say? “I’m telling you I owe him $1,000. What do I need the malveh here for? I’m telling you I owe the person money. Write, write, write the shtar.” That’s the machloket here: “B'kotvin shtar la-loveh af al pi she'ein malveh imo.”
“Tanna didan savar kotvin shtar la-loveh af al pi she'ein malveh imo.” Our Tanna holds that you can write a shtar for the loveh even when the malveh is not with him. Now what’s going to happen? “Zimnin de'azil legabei safra vesahedei” (sometimes he goes to the scribe with witnesses), and the person comes along with the name Yosef ben Shimon. “Ve'amar lehu,” he tells the sofer in front of the eidim (witnesses), “Kitvu li shtara d'ba'ina lemeizaf miYosef ben Shimon chaveri” (Write me a document saying that I want to borrow from my friend Yosef ben Shimon). He says, “I want to borrow $1,000 from my friend Yosef ben Shimon.” Now they write the shtar. What does he write? “Hello, pay me!” Because the names are the same. So what does he do? He steals it. He steals it! Since the malveh doesn’t have to be there, when they write the shtar—“Yosef ben Shimon owes me whatever; I, Yosef ben Shimon, borrowed $1,000”—he comes along and collects from whom? From Yosef ben Shimon. He pulls out the shtar and, instead of being a loveh, turns himself into a malveh.
“Zimnin de'azil legabei safra vesahedei”: the person’s name is Yosef ben Shimon. He tells the sofer and the eidim, “Ve'amar lehu, kitvu li shtara d'ba'ina lemeizaf miYosef ben Shimon,” exactly: “I want to borrow from Yosef ben Shimon.” “U'vatar dechatvei vechatmei leh” (after they write and sign it), “nekiteih leh” (he takes the document), goes to the other Yosef ben Shimon, “ve'amar leh, havi li mah d'yazaft minai” (and says to him, “Give me the money you borrowed from me”). That’s why the Mishnah says that when there are two people named Yosef ben Shimon, they can’t lend to each other. They can’t lend to each other because, since you’re allowed to write a shtar without the malveh, this kenunya (deception) can happen.
“Tanna bara savar ein kotvin shtar la-loveh ad sheyehei malveh imo.” The Tanna of the baraita holds that you cannot write a shtar for the loveh unless the malveh is there. Then you don’t have a problem, because you know who the malveh was and who the loveh was, so you can’t come along afterward and change the story.
“Nimtza le'echad bein shtarotav shtarot shel Yosef ben Shimon paru'a, shtarot sheneihem pru'im.” We learned in the Mishnah: Let’s say a person—we don’t know who he is here, the malveh or the loveh. Let’s assume he’s the malveh. The malveh is going through his papers and sees a shovar (receipt). The receipt says that the money Yosef ben Shimon owes me is paid in full. It happens that this malveh has money out with two people named Yosef ben Shimon; he lent money to both of them. Each one can come along and say, “I’m the one. I’m the one!” Therefore, he can’t collect from either of them.
“No? Could you do that one more time, please?” The malveh is going through his papers and sees a shovar. The shovar says that the money Yosef ben Shimon owes me is paid in full. Got it? Beautiful. But it doesn’t say which Yosef ben Shimon. He lent money to both of them. Each one can come along and say, “I’m the one, and I already paid.” So what do you mean, the other person then? The other person will say the same thing: “No, it was him. It was him. It was me, it was me, it was me.” Therefore, he can’t collect. Finished.
The Gemara says, wait, what do you mean, if you didn’t find it? No, no, no. If you didn’t find this shovar—okay, forget about it; you didn’t find the shtar. Does he have the original shtar? No, the person has the initial shtar; he goes to the first Yosef ben Shimon and says, “Pay me.” What will the other one say? “Go to the other person.” What difference does it make whether you found the receipt or not? Either way, he doesn’t have to pay; the borrowers don’t have to pay. Why does the Mishnah say “if he found this shovar”? If he didn’t find the shovar, he has the original shtar. So he goes to—he won’t collect! He won’t collect; they’re playing the same game. Whether he found the shovar or didn’t find it, it’s the same game.
So the Gemara says, “Ta'ama d'nimtza, ha lo nimtza, matzi mapik?” (Does that mean that because it was found, if it wasn’t found, he could collect?) Wait, if he didn’t find it, could he collect the money? “Veha tenan, velo echad yachol lehotzi aleihem shtar chov” (But we learned that no one can produce a loan document against them). We learned that nobody can present a shtar against two people named Yosef ben Shimon in the same town. So what’s the nafka minah (practical difference) whether he found it or not? “Amar Rav Yirmiyah, bimshulashim (identified by three generations).” The shtar was meshulash. If there had been a shtar, it would have said Yosef ben Shimon ben Naftali. If he had the shtar, he would have been able to collect. But here he doesn’t have the shtar; he just has a receipt.
So the Gemara says, wait, what does it say on the receipt? Only the two… “Nechzei telata shemahata d'chetiv” (Let us see whether the three names are written). Look at the receipt: does it say the three names? No. “Amar Rav Ashi, bimshulashim b'shtar ve'ein bimshulashim b'shover.” The shtar had three names, but the shovar does not have three names. So “ein hachi nami” (that is indeed so): if he had a shtar, he could have collected from Yosef ben Shimon ben Naftali. But he tore up that shtar, and now he has a receipt saying, “I got paid by Yosef ben Shimon.” He didn’t write the three names on the shovar, so he cannot collect from either of them. But if he had the original shtar, “ein hachi nami,” he could collect, because the shtar was meshulash and the shovar was not meshulash. Beautiful. Obviously, he had lent money to both of them. Otherwise, what would the claim be?
Abaye said—Abaye has a different way of understanding this. The way we’ve been understanding the case is that the malveh found the shtar. Until now, we understood that the malveh found it “bein shtarotav” (among his documents) and is dealing with it. Now Abaye has a different approach: “Hachi ka'amar, nimtza la-loveh bein shtarotav” (This is what it means: it was found by the borrower among his documents). The loveh found it! And what does it say in the loveh’s papers? “Shtaro shel Yosef ben Shimon alai paru'a. Shtarot sheneihem peru'im” (The document of Yosef ben Shimon against me is paid; both documents are paid). The loveh finds that I paid in full. He says, “The shtar of Yosef ben Shimon: balance zero.” So now the two people named Yosef ben Shimon come along and say, “Pay me.” Balance zero. Therefore, the loveh doesn’t have to pay either of them, because, bottom line, hamotzi me-chaveiro (the one who extracts from another must prove his case): I say, “Zero; I already paid you.” “No, you didn’t pay me; you paid the other person.” How did I pay? I’m the other person; you’re the other person. It doesn’t say which one. So it’s the loveh. But “ein hachi nami,” if the person had a shtar, he would be able to collect. He doesn’t have a shtar; he’s coming along with the paper.
“Why would he get paid if one person had the shtar? It’s still…” He didn’t have a shtar; he had a shovar. Who’s to say which one it was? Ah, and the reason he has the shovar is that at the time he came, he couldn’t find the shtar. He said, “Itarches li” (I lost it); that’s why they wanted the shovar. “Ein hachi nami.” What happened is that the loveh, whose name is Jack, has the paper saying that the money he borrowed from Yosef ben Shimon is paid. So he found it “bein shtarotav.” Therefore, he doesn’t have to pay either of them. He borrowed from both of them, so now which one? Yosef ben Shimon.
Look at Rashbam. Where’s Rashbam here? “Abaye amar,” the first wide line in Rashbam: “Matnitin keshenimtze'u beveit loveh mairi” (Our Mishnah is speaking of a case where it was found in the borrower’s house). This is what it teaches: “nimtza la-loveh echad bein shtarotav shovar, she-shtar shehaya nosheh bo Yosef ben Shimon paru'a hu, vehayu shenei Yosef ben Shimon noshim bo” (A borrower found a receipt among his documents stating that the loan owed to one Yosef ben Shimon was paid, while two people named Yosef ben Shimon were claiming the money). They had two people claiming that the money was owed to them. “Ve'ilma velimle zeh hashover” (Without this receipt), both of them would get paid, because both of them have shtarot against him. “Hayu sheneihem nifra'im mimenu shitreihem” (Both of them would collect from him on their documents). Exactly! “Sheneihem yecholim lehotzi shtar chov al acherim.” They could each present a shtar against Jack: “I’m Yosef ben Shimon against Jack”; “I’m Yosef ben Shimon against Jack.” No problem. The problem is that Jack has the shtar chov—or a shovar—that says it’s paid. Now which one?
“What if, isn’t it min hastam (presumably) that when somebody pays a loan, they get the shtar back and they rip it up?” What if he says, “Itarches li”? What if he says, “I don’t have the shtar”? “I don’t want you to come back and pay me again.” I don’t want you to come back and tell me you lost it. What do you mean you lost it? How do I know you won’t find it later and present it? So write a shovar. I might have a shovar that says “Paid in full.” Now you come over and say, “Where’s my money?” “Paid in full.” The other person says, “Where’s my money?” “Paid in full.” Yosef ben Shimon, Yosef ben Shimon: “Paid in full.” A shovar is a legal document, let’s say.
“Ve'achshav b'zeh shovar hunach stam, ve-kaima lan yad ba'al hashtar al hatachtonah” (Now, in this case, a receipt was left unspecified, and we know that the document-holder is at a disadvantage). You know, “hamotzi me-chaveiro” now, because you’re trying to take money from me. “Vechen Yosef vechol echad mehen she-shtaro omer lo hano shovar alach” (And so each Yosef whose document is being presented can say to him, “That receipt is yours”). Good.
Now look what Rashbam says here. This is a very important Rashbam, boys. What would you say if both of them came together to beit din (court)? Both people named Yosef ben Shimon come together. Right, now you can’t tell me, “No, it’s you.” “Hey, we’re both here. Either one of us—give us the money and we’ll split it.” Rashbam says that’s true. “Mihu, ve-nir'eh li she'im sheneihem ba'im beharsha'ah,” if they both come together, “zeh mizeh al haloveh,” “yecholim ligbot echad min hashtarot bemimah nafshach,” “min haloveh she-modah hu mikol makom bishenei shtarot.” The borrower admits that he borrowed from two people. He’s just saying it was the other person: “I’ll go find the other person.” Then the other person comes separately: “Oh, that’s the other person.” Now they come together. Where are you going to block me? “You, him? Okay, pay him. Not him? Pay him. You’ve got to put the money on the table.” So when they come together, Rashbam says, “You’ve got him.” That’s where you checkmate this person.
“Ela shepara echad mehem” (Unless he paid one of them). But what if the loveh comes along and says, “I paid you both”? Hey, why wouldn’t he have a shovar? “Ve-hashovar nichtav stam al sheneichem” (The receipt was written without specifying which of you). He might say, “We wrote a general shovar. Why? I didn’t want to write two; paper is expensive. I wrote, ‘Yosef ben Shimon is paid in full,’ and it was for both of you.” Then it might be a valid claim. Rashbam says he beat them. So these people are wise guys. They come to beit din thinking they have a good to'en (claim). They come together: “Okay, now what? You blocked us.” “Hey, we wrote one shovar for both of you. Have a good day.” He’s saying he can. He’s saying he can. That’s impossible. He’s saying, “We wrote one general shovar,” or “the loan of…” That’s what he says he’s doing. He’s saying, “U-mimah shekatavti baRashbam she-hashovar nichtav stam al sheneichem, nir'eh li de-ta'anah ma'alyata hi” (And from what I wrote that the receipt was left unspecified for both of you, it seems to me that this is a valid claim). “Ta'anah ma'alyata hi.” “I wrote one shovar. You both paid me back.” That’s what comes out.
“But each shtar is a separate item.” You’re right, but I wrote one general receipt. I wrote one general receipt. Hey, rabotai, your name is Yosef ben Shimon, and your name is Yosef ben Shimon, so I wrote, “Yosef ben Shimon, balance zero.” Same name. “I hachi nami,” if they had two different names, you’d be right. Same name; I wrote it stam. Chazak, chazak, chazak. Chazak uvaruch (well done and blessed). He’s saying it works. You want to say it doesn’t work? It doesn’t work. I hear you. No problem. I can hear a claim: you tell me you found Rishonim (early commentators) who say otherwise, I can hear you. This chiddush of Rashbam. This chiddush of Rashbam.
Okay, rabotai. “You have the teachers of this…” Where does the sound come from? Okay, chacham (wise man), let’s go veiter (further). “Keitzad ya'asu, yeshaleshu.” What do we say in the Mishnah? How do you get around this problem? “Keitzad ya'asu, yeshaleshu.” What should you do? Put in three generations: Yosef ben Shimon ben Naftali, Yosef ben Shimon ben Yehudah, Yaakov. Put in three generations, and that solves the problem.
“Tana, ve'im hayu sheneihem kohanim, yichtevu dorot” (It was taught: if both were priests, they should write the generations). All right, if they’re both kohanim (priests), you have to put dorot (generations), which means you write Yosef, Yosef ben Shimon haKohen ben whatever, and add another generation, because they’re both kohanim here.
There’s a big question in Ketubot (tractate of marriage contracts), when we learn Ketubot. A big she'eilah (question): When I write a shtar—let’s say I write a ketubah (marriage contract)—and in the ketubah I write, “hechatan, hane'im, neta sha'ashu'im, yir'eh zera, ya'arich yamim.” What does he mean there? He says, “Omnam,” and brings down the Rashbam, as we just said: “omnam haRitva ta'an shelo mistaber ken kelal, she'ein derech lichtov shovar echad al shenei chovot shonim” (However, the Ritva argued that this is not at all reasonable, because it is not customary to write one receipt for two different debts). How is it possible? I knew there had to be somebody who would say what you said! The Ritva—chazak uvaruch—there it is, Rashbam. I knew it. I said, that’s why when you argued for it, I couldn’t argue with you. What he’s saying is mistaber (reasonable): one shovar for both. Okay, it’s a machloket. That’s Rashbam’s chiddush.
Anyway, you write in the ketubah, “neta sha'ashu'im, yir'eh zera, ya'arich yamim, hechatan, habachur, Eliya…” You see? You write it in the shtar. Me'eli HaKohen, Me'eli—these guys love to hear Me'eli. Then you write it on the document, and two edim sign. Chazak uvaruch, now we have a ketubah. Now, 27 years later, this guy comes to me to get married. He wants to get married. I ask, “Who are you getting married to?” “I’m getting married to a divorcée.” “How are you getting married to a divorcée? Okay, what’s your name?” “Tawil. But I’m not from the ‘Eli guys.’ I’m Tawil from Yisrael.” Well, it already says Tawil. I say, “Do me a favor. How can I figure this out? Can you bring me your grandfather’s ketubah from when he got married? I want to see what they wrote.” I get the ketubah, and it says Kohen Me'eli.
So the question is: Can I establish kehunah (priestly status) from a shtar? This is the Gemara’s question in Ketubot. Can I establish it? Why? What’s the logic? It says Me'eli, and the edim signed. Or do I say, “No, no, no. When I’m signing a ketubah, I’m not signing for Eliya HaKohen. What do I know about whether this person is Eliya HaKohen? I’m signing for the chiyuv mamoni shebo (financial obligation contained in it).” “Vechi ani ed?” (Am I a witness?) They just found me at the wedding: “Rabbi Mansour, could you sign, please?” Did I investigate who the person is? Did I do a DNA test to see if he’s Me'eli or not? What do I know about whether he’s Me'eli? I signed; the rabbi told me to sign. What am I signing? A $26,000 ketubah, 200 zuz (coins), whatever. I don’t know this person. Your name is Mr. So-and-so; he’s Mr. So-and-so. All right, I signed.
So the question is: Are the edim who are chotem (signing) on a ketubah signing on the mamonot shebah (the monetary obligations in it), or are they signing on everything? Lema'aseh (in practice), it’s a machloket. Lema'aseh, the Rambam (Maimonides) and some Rishonim say that the posek (halachic authority) rules that a person can go up for nesi'at kapayim (the priestly blessing) based on a ketubah. A person comes and says, “I’m a kohen.” “Prove to me you’re a kohen.” “Here’s my ketubah. Eliya HaKohen, signed.” That's it, you can go up to aliyat kohen, kevod kohen. So it seems that we posek like that: when edim sign on a shtar, they're really signing on akula shtra, everything that's said on a—so it's a big thing. Therefore, by the way, don’t write “kohen” in a shtar unless you know it, because this shtar can end up giving the person legitimacy later on. It can give him a heiter. Now, I guess if the rav (rabbi) who’s mesader kiddushin (arranging the marriage) tells the edim, “Listen, I’m telling you the person is a kohen; we know him,” then they sign, relying on the rav. Well, okay, it’s interesting.
Okay, anyway, we go to the new Mishnah, rabotai. “Ha'omer livno” (One who says to his son)—oh, this is a great case. A person tells his son. He’s on his deathbed and wants to make teshuvah (repentance) before he passes away. He tells his children, “Shtar bein shtarotai paru'a ve'eini yode'a eizehu” (One of the documents among my documents has been paid, but I don’t know which one). He says, “Listen, one of the shtarot among my shtarot—I know I paid it, or he paid me; he paid me.” Now the children are going crazy, because their father has a thousand shtarot. He’s owed $10 million. Before he died, he said, “I say one of them is paid,” but he doesn’t tell them which one. So what happens? Exactly: “ve'eini yode'a eizehu, shtarot kulan peru'in” (I don’t know which one; all the documents are considered paid). Finished. The person lost everything, yeah? Don’t be such a good person. Don’t be such a good person. Right, you killed the child. The child died first now. The child heard that, and the child died!
Which means I can go, “Your father said one of them was paid. Yeah, I’m the person. Chazak uvaruch.” “Oh, you’re the person?” The other person says, “By the way, I’m the person.” Same story. Unless they all come together, as the Rambam says, and converge on the person together. Now what? How are you going to pay that? Subtract this, subtract the hamotzi me-chaveiro, subtract the biggest one, and then pay us the different sum.
Anyway, “Nimtza le'echad sham shenayim, hagadol paru'a, katan eino paru'a” (If two documents are found there, the larger one is paid and the smaller one is not paid). Fine. If one—let’s say it says that one of them is paid, but he lent money and there are two shtarot out against the person. He says one of them is paid, so we say that the bigger one is paid and he only has to pay back the smaller one: “hamotzi me-chaveiro alav hare'ayah” (the one who extracts from another must prove his case). Understand? Understand the case? Good. Gemara.
“Is he saying that as a rule, or is he telling the son?” It’s a rule! No, he actually is telling the son. Now we’re applying the rule. So it’s a rule: the smaller one—yes, the rule is that if he says one of them is paid and I don’t know which one, each person can say, “I’m the one.”
“Amar Rava,” all right, this is now semantics, this little piece of Gemara here. The rules aren’t going to change; the Gemara is just assuming that certain words mean certain things. The Gemara is going to say, “No, the words don’t mean anything; it’s the rules of hamotzi me-chaveiro.” Let’s see.
“Amar Rava, shtar lecha beyadi paru'a” (Rava said: “The document I have against you is paid”). Good. “Shtar shelcha shebeyadi paru'a hu” (The document of yours that I have is paid). The malveh has two shtarot. So what do we say here? The malveh is telling the loveh that one of these two shtarot is paid. What’s the law? “Hagadol paru'a vehakatan eino paru'a” (The larger one is paid, and the smaller one is not). Because we say the larger one is paid—the real rule is because of hamotzi me-chaveiro. But the Gemara is now assuming it’s because he said “shtar lecha beyadi,” so “shtar lecha beyadi” refers to one of them. However, if he says “chov lecha beyadi paru'a” (the debt you have with me is paid), he didn’t say shtar; he said chov, and then “shtarot kulam peru'im” (all the documents are paid).
The Gemara says it can’t be that this is the chiluk in the wording. Why? “Amar leh Ravina le-Rava, ela me'atah, sadi mechurah lecha, sadeh gedolah mechurah lo? Sadeh sheyesh li mechurah lecha, kol sedotav mechurim lo?” (Ravina said to Rava: “If so, when someone says, ‘My field is sold to you,’ does that mean the larger field is sold to him? And when he says, ‘The field that I own is sold to you,’ does that mean all his fields are sold to him?”) Exactly. A person comes along and says, “Sadi mechurah lecha” (My field is sold to you). Now the mocher (seller) is holding the field over—sorry, the koneh (buyer) is holding the field. I come along as the mocher and say, “I sold you a field.” Well, which field did we sell? Which field does the Gemara say? You get to keep the bigger one, because hamotzi me-chaveiro alav, and I’m trying to take the field away from you. You get to keep the bigger one until I can prove it. But if I say, “Sadeh sheyesh li mechurah lecha” (The field that I own is sold to you), that’s like chov. So does that mean all my fields belong to you? It can’t be! You want to make a chiluk between the word sadeh and “sadeh sheyesh li,” as if it’s like shtar and chov? That’s not the principle working here. No one is going to say that when a person says “sadeh sheyesh li mechurah lecha,” the person gets to keep all his fields.
“Ela peshata d…” (Rather, the plain meaning is that…). The peshat (plain meaning) is, “hatam yad ba'al hashtar al hatachtonah” (there, the document-holder is at a disadvantage). The peshat is that there’s no difference between shtar and chov. What’s the issue here? “Yad ba'al hashtar al hatachtonah.” Why? Because I’m the motzi (person extracting); I’m trying to take money from you. So when I come along and make a statement—whether I say, “One of them is paid,” or “The chov is paid”—it doesn’t matter. The bottom line is hamotzi me-chaveiro alav hare'ayah: you only pay me back the smaller amount. And hu hadin (the same law applies) the other way. When I say “sadi mechurah lecha,” I’m the motzi, trying to take the field you have. The koneh is the muchzak (person in possession); you have the field. I can’t take the bigger field away from you. I can only take the smaller field, until I prove it’s the bigger field. So it’s basically working with the principles we said: the principles of hamotzi me-chaveiro alav hare'ayah. Okay. Beautiful.
We have, “Ve-shema tomar, sadi mechurah lecha, dehatam hamotzi me-chaveiro alav hare'ayah nami mishum hai ta'ama, deyad ba'al hashtar al hatachtonah dehainu malveh, chov lecha beyadi paru'a, kol hashtarot sheyesh lo alav peru'in” (And lest you say that in the case of “my field is sold to you,” the rule that the one who extracts must prove his case is also for this reason—that the document-holder is at a disadvantage, meaning the malveh—when he says, “The debt you have with me is paid,” all the documents he has against him are paid). Right, that’s why when he says chov, when he says “chov lecha beyadi paru'a,” it’s all of them. So “kol hashtarot sheyesh alav peru'in” (all the documents he has against him are paid) not because the word chov means all, but because of hamotzi me-chaveiro alav hare'ayah. Which one? Chov sounds like all the shtarot. You want to collect shtarot from me, but you said the chov is paid. Doesn’t the word chov mean a single debt, and chovot means…? Chov is the debt. The debt. “Give me the debt.” It means the debt, a single debt. So he should have been more specific: “total debt, total debt.” Like the one I told you? Right. In the case of shtar, it’s one; in the case of chov, it’s general. “36, what does he say?” “Chov mashma mah she'atah chayav li” (The word “debt” implies what you owe me). Right, “mah she'atah chayav li.” But that’s not the peshat. The peshat is really because of hamotzi me-chaveiro alav hare'ayah. Okay, beautiful.
“The Gemara responds that it is not because it is clear to us without doubt that this is the lender’s intent, and Ravash’s entire position stands on two villages, yes? When he says ‘chov li beyadi,’ rather only from doubt…” Chov doesn’t mean that for sure; maybe it means that. Since it might mean that, and you’re hamotzi me-chaveiro alav hare'ayah—you’re trying to get the money—maybe you meant all of it. Initially, the Gemara thought that the word chov definitely means all. It doesn’t mean that definitely. We don’t know what the word chov means. Chov can mean all, and it can also mean one shtar. But since we don’t know, and chov can mean everything, until I bring proof, I cannot collect anything from you. It’s basically working with the rule of “yad ba'al hashtar al hatachtonah.”
Now we get to, rabotai… “Yad ba'al hashtar al hatachtonah”—this is hamotzi. Rabotai, now we get to the new, last sugya (Talmudic discussion) of Bava Batra (tractate). The last sugya of Bava Batra is the sugya of arev (guarantor). Arev is a guarantor. The Gemara is going to teach us the laws of guaranteeing money. The Chafetz Chaim says that just as it’s a mitzvah (commandment) to lend money, it’s a mitzvah to guarantee money. The guarantor gets a mitzvah de'oraita (Torah-level commandment), just like the malveh does, because the person won’t lend the money unless there’s an arev. Of course, a person shouldn’t become an arev unless he’s willing to pay. Usually, a person signs as an arev and says, “Don’t worry, it’ll never happen.” Then when it happens, the other person says, “What? You signed. You signed; you know what you got.” So when the arev signs, he has to put it in his mind that he’s already lost that money. If you can’t afford to lose that money, like they say in the stock market, then if you can’t afford to lose the money when you invest, don’t invest. Don’t play. That’s the law of arev.
Just to show you one ma'aseh (incident): you can’t fool around with arev. When I was in the Torah Center, a person came into our office, a rabbi with a beard down to the floor. He came to me and said, “Rabbi Mansour, I need a loan.” “I’m not a banker, and I also need a loan. I’m in the same—whatever. When you find someone to lend you money, tell him I also need the same amount that you need. What are you coming to me for?” “No, no, no, no. Can you speak to Rabbi Davidson, Rabbi Ozeri? They have a gemach (free-loan fund) in Yad Yosef.” “I’ll speak to them for you, no problem. If they have a gemach, I can speak to them for you. I don’t know who you are.” “What do you mean? I’m a rabbi.” “Okay, fine.”
I call Rabbi Ozeri. “Do you know the person?” “No, I don’t know him. I’ve known him for ten minutes; he came to my office. He looks like an erlecher (pious) person. What does he want?” “A $3,000 loan.” “For how long?” “Six months.” “Okay, Rabbi, but you have to guarantee it.” “Guarantee what? Who’s going to guarantee me? Arva de'arva tzarich (a guarantor for the guarantor is needed). I’m going to guarantee him?” He says, “Yeah, otherwise you can’t.” So the person begs me: “Please, Rabbi, if you don’t guarantee it, I won’t have the money for the—I give, for the blah blah blah.” So, okay, I’m going to guarantee the person’s loan.
So you know what? I want the person to get the money, but I don’t want to be a guarantor! How do they do it in the Torah Center? You have to give them a check, dated six months later. If the person doesn’t pay in six months, boom, they deposit your check. So I signed a $3,000 check to Yad Yosef. Instead of signing “Mansour,” I signed a sketch signature. I said, “I don’t want to be an arev for the person.” I gave it to Rabbi Ozeri. It just shows you: when you’re a wise guy, you get caught. Watch what happens. I gave it to him and told him, “If you deposit this check, I’m going to put you both in cherem (excommunication). I’m doing this as a chesed (kindness). You’re not taking my money.” I can’t say that, because I’m an arev, I’m an arev! But I don’t want them to take my money.
Fine. Six months later, Ozeri comes to me. “The person didn’t pay.” “Hey, don’t cash the check. Don’t cash the check yet. Slow down.” I go to the person, because he comes to class. I say, “Rabbeinu (our rabbi), six months.” He says, “I paid.” He says he paid; Ozeri says he didn’t pay. Now there’s a machloket. “No, you…” He tells Ozeri, “You weren’t there? In Minchah (afternoon prayer), I gave you the envelope; you put it in your pocket.” He says, “People give me envelopes all day long. I don’t know what you gave me.” “Yeah, I gave it to you right here. Don’t you remember? After Chazarat HaShatz (the cantor’s repetition), I walked up to you and said, ‘Hinei zeh’ (Here it is). You said, ‘Oh,’ and put it…” “I don’t remember. You came during Chazarat HaShatz. What do I remember?” “No, I gave it to you, the $3,000.” “To you?” “No, to Ozeri! So I gave it to you.” Ozeri said, “I don’t remember you giving it to me. I don’t know where to put the che—I don’t know where the check is. Give me another check.” “What, give you another check? It’s gone; I don’t know…” “Look in the bank; the bank has a statement.” “That’s not my problem. You lost it; I gave it.” The whole thing—it was cash! A whole story!
I said, “The bottom line, the bottom line, I’m out. I’m the arev; he’s claiming he paid you, so you can’t cash…” He cashed my check. Okay, fine. It ends up going to Chacham Ozeri. “Chacham Ozeri, ta'azor li” (Chacham Ozeri, help me). I want you to judge the case. Okay, Ozeri, he comes in, he comes in; I have nothing to do with it.
Now, six months later, I come to the kollel (study hall). I’m learning with the rabbi, and he comes in. He’s looking at me; he seems a little upset. All right, I’m not saying anything. Then he stops and says, “Who is Sambusak?” I know who Sambusak is; I don’t know who he’s talking about when he says Sambusak. I don’t know; Sambusak is Sambusak. He says, “Why do you sign your check—that’s how you sign your check, Sambusak?” So I tell him, “I don’t know what you’re talking about, Rabbi.” He pulls the check out of his pocket. He says, “Zeh, zeh, zeh atah?” (Is this you?) I didn’t want to be the arev! You can’t do that! If you’re arev for the person, you have to be willing to… Then don’t be arev, then! I said I was doing the person a favor; I wanted him to get the money. He says, “No, but then you’re on the hook; you can’t…” Well, I’ll show you. I thought I’d get around it and no one would ever find out. It didn’t work! I turned my back, and I got the Sambusak.
Anyway, what was the psak (halachic ruling)? The psak was… the psak was… No matter, we all eat Sambusak; we’re good. No, no, I didn’t pay. That’s what—the bottom line is, I didn’t pay, because the Rabbi gave me back the check. I didn’t pay. What did he tell him? Ah, maybe he told him “yechaloku” (they divide it). There was no proof; I forget what he told him.
Anyway, the person came to me and said, “I paid.” When Ozeri said he didn’t pay, I went to the person. I said, “I trusted you, your beard. I trusted you.” He says, “Look, I…” because he came to me and said, “Don’t trust me; trust my beard,” since I didn’t know him. How did he look? He looked like a person! And he put Rabbi Ozeri into a mess.
Anyway, on Shabbat we’ll start from the Mishnah. This isn’t such a hard daf. I’m going to continue the daf. It’s long, but it’s not so hard. These are the laws of arev. Listen, there are four types of guarantors. One type is a regular guarantor: you can go to the loveh, and you can’t go to the guarantor unless the loveh has nothing left. Then you go to the… That’s the weakest type of arev. You go to the loveh; if he has no money, you take his piano, you take his menorah (lamp), and the arev can keep saying, “Until you take every single stick, a shirt, don’t come to me until the person has nothing left.” That’s one type of arev.
Another type of arev is: no, as long as he has no liquid assets, you don’t have to take his other assets; you go to the arev. Another one is that you can go to either one first. And the fourth type of arev is that you go to the arev first. That’s called “shelof dotz” (collect directly from the guarantor). So there are four types of arev we’re going to learn about. You don’t even have to go to the… Go straight to the arev! When the money is due, I go straight to the arev. That is, when it comes before, “shelof dotz.” With the other one, I can choose. With another one, I can go only after he has no money; and with the last one, only if he has nothing, not even a shirt on his back. That’s the least. We’ll learn about all that.