Bava Batra 170
רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל סָבַר: אֵין אוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה, וְרַבִּי סָבַר: אוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה.
The Gemara explains: This is a case where one party sold land to another, who then sold it to a third party by transferring the bill of sale to him. Rabban Shimon ben Gamliel holds that the letters are not acquired by transferring possession of the document. Handing the bill to the third party is therefore not a valid act of acquisition. In order to establish that the land is his, one must prove presumptive ownership by demonstrating that he has lived in the land uncontested for three years. And Rabbi Yehuda HaNasi holds that the letters are acquired by transferring possession of the document. Therefore, if the third party produces the bill of sale that had been transferred to him, this is sufficient proof that the land is his.
אֲמַר לֵיהּ אַבָּיֵי: אִם כֵּן, פְּלוּגְתָּא לִדְמָר! אֲמַר לֵיהּ: וְתִפְלוֹג!
Abaye objected and said to Rav Dimi: If that is so, that Rabban Shimon ben Gamliel holds that letters are not acquired by transferring possession of the bill of sale, this would be in disagreement with what the Master, Rabba, said earlier, that Rabban Shimon ben Gamliel maintains that letters are acquired by transferring possession of the bill of sale. Rav Dimi said back to him: And let it be in disagreement. I am not obligated to be in agreement with Rabba.
אֲמַר לֵיהּ, הָכִי קָאָמֵינָא לָךְ: מַתְנִיתָא לָא מִיתָּרְצָא אֶלָּא כְּדִמְתָרְצָא מָר, וְאִם כֵּן קַשְׁיָא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אַדְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל!
Abaye clarified his objection and said to him: This is what I meant to say to you. The baraita (168b), which Rabba was explaining, can be explained only the way the Master, Rabba, explained it. And if so, i.e., if you do not agree with Rabba’s understanding of the opinion of Rabban Shimon ben Gamliel, there is a difficulty, as there is a contradiction between one statement of Rabban Shimon ben Gamliel and the other statement of Rabban Shimon ben Gamliel.
אֶלָּא אָמַר אַבָּיֵי: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁנִּמְצָא אֶחָד מֵהֶן קָרוֹב אוֹ פָּסוּל;
Rather, Abaye said that the explanation of the baraita concerning one who appears before a court to be judged is as follows: With what are we dealing here? We are dealing with a case where one of the witnesses signed on the bill was found to be a relative to one of the parties, or he was found to be disqualified from bearing witness for another reason, and therefore the document is rendered invalid.
וּבִפְלוּגְתָּא דְּרַבִּי מֵאִיר וְרַבִּי אֶלְעָזָר קָא מִיפַּלְגִי – רַבִּי סָבַר לַהּ כְּרַבִּי אֶלְעָזָר, דְּאָמַר: עֵדֵי מְסִירָה כָּרְתִי,
Abaye continues: And the two opinions in the baraita disagree with regard to the issue that is the subject of the dispute between Rabbi Meir and Rabbi Elazar. Rabbi Yehuda HaNasi holds in accordance with the opinion of Rabbi Elazar, who says: The witnesses of the transmission of the document effect the transaction, meaning that witnesses are not required to be signed on a document at all, provided that there are witnesses who saw the transfer of the document to the relevant party. It is therefore inconsequential that one of the witnesses that signed the document is disqualified. This is why Rabbi Yehuda HaNasi says that the claim is judged based on the deed, i.e., the deed is valid.
וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל סָבַר לַהּ כְּרַבִּי מֵאִיר, דְּאָמַר: עֵדֵי חֲתִימָה כָּרְתִי.
And Rabban Shimon ben Gamliel holds in accordance with the opinion of Rabbi Meir, who says: The signatory witnesses on the document effect the transaction, meaning that it is necessary for a document to have witnesses sign it. If there are no witnesses or if one or both of them are disqualified, the document is not valid even if its transmission is witnessed by qualified witnesses. This is why Rabban Shimon ben Gamliel says that the claim is judged based on the claimant’s presumptive ownership; this is his only valid proof since the deed he possesses is not valid.
וְהָא אָמַר רַבִּי אַבָּא: מוֹדֶה הָיָה רַבִּי אֶלְעָזָר בִּמְזוּיָּיף מִתּוֹכוֹ, שֶׁהוּא פָּסוּל!
The Gemara objects to Abaye’s explanation: But doesn’t Rabbi Abba say that Rabbi Elazar concedes that in the case of a document whose falsification is inherent in it that it is not valid? Rabbi Elazar said only that a document that has no witnesses signed on it at all is valid if its transmission was witnessed. If the document has disqualified witnesses, he agrees it is not valid.
אֶלָּא אָמַר רַבִּי אֲבִינָא, הַכֹּל מוֹדִים שֶׁאִם כָּתוּב בּוֹ: ״הוּזְקַקְנוּ לְעֵדוּתָן שֶׁל עֵדִים, וְנִמְצֵאת עֵדוּתָן מְזוּיֶּיפֶת״ – שֶׁהוּא פָּסוּל, כִּדְרַבִּי אַבָּא; לֹא נֶחְלְקוּ אֶלָּא בִּשְׁטָר שֶׁאֵין עָלָיו עֵדִים כְּלָל, דְּרַבִּי סָבַר לַהּ כְּרַבִּי אֶלְעָזָר, דְּאָמַר: עֵדֵי מְסִירָה כָּרְתִי. וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל סָבַר לַהּ כְּרַבִּי מֵאִיר, דְּאָמַר: עֵדֵי חֲתִימָה כָּרְתִי.
Rather, Rabbi Avina said a modification of Abaye’s explanation. All concede that if it is written in the document: We, the court, engaged in an investigation of the testimony of the witnesses and have determined that they signed the document, and their testimony was found to be false, the document is not valid, in accordance with the statement of Rabbi Abba. They disagree only with regard to a document upon which there are no witnesses signed at all. As Rabbi Yehuda HaNasi holds in accordance with the opinion of Rabbi Elazar, who says: The witnesses of the transmission of the document effect the transaction. Signatory witnesses are not necessary, and the deed can therefore be used as proof. And Rabban Shimon ben Gamliel holds in accordance with the opinion of Rabbi Meir, who says: The signatory witnesses on the document effect the transaction, so the deed cannot be used. Therefore, the only valid proof would be based on his presumptive ownership.
וְאִיבָּעֵית אֵימָא: בְּמוֹדֶה בַּשְּׁטָר שֶׁכְּתָבוֹ צָרִיךְ לְקַיְּימוֹ קָא מִיפַּלְגִי,
The Gemara suggests: And if you wish, say instead: The case in the baraita is one where the alleged purchaser has a bill of sale for the land, but the alleged seller, although he admits that the document was written with his consent, claims that the sale did not ultimately occur, and that the alleged purchaser took the document from him. And the tanna’im in the baraita disagree, with regard to the halakha in the case of a debtor who admits that he wrote a promissory note, whether the creditor is required to ratify it in court in order to collect, and, by extension, in a case where a seller admits that he wrote a bill of sale, whether the purchaser must ratify it in court in order to establish its validity.
דְּרַבִּי סָבַר: מוֹדֶה בִּשְׁטָר שֶׁכְּתָבוֹ – אֵין צָרִיךְ לְקַיְּימוֹ. וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל סָבַר: צָרִיךְ לְקַיְּימוֹ.
As, Rabbi Yehuda HaNasi holds that in the case of a debtor who admits that he wrote a promissory note, the creditor is not required to ratify it in court in order to collect what is owed to him. In this case as well, the purchaser can use the bill of sale as proof that he is the rightful owner of the property. And Rabban Shimon ben Gamliel holds that in the case of a debtor who admits that he wrote a promissory note, the creditor is required to ratify it in court in order to use it to collect the debt. In this case as well, since the purchaser is unable to ratify it, his only recourse to prove his ownership is showing that he lived in the land uncontested for three years.
וְהָא אִיפְּכָא שָׁמְעִינַן לְהוּ! דְּתַנְיָא: שְׁנַיִם אֲדוּקִין בִּשְׁטָר, מַלְוֶה אוֹמֵר ״שֶׁלִּי הוּא וְנָפַל מִמֶּנִּי וּמְצָאתוֹ״, וְלֹוֶה אוֹמֵר ״שֶׁלְּךָ הוּא וּפְרַעְתִּיו לָךְ״ – יִתְקַיֵּים הַשְּׁטָר בְּחוֹתְמָיו. דִּבְרֵי רַבִּי, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: יַחְלוֹקוּ.
The Gemara asks: But didn’t we hear the opposite concerning Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel? As it is taught in a baraita (Tosefta, Bava Metzia 1:8) that if two people, the debtor and the creditor, are grasping a promissory note, and the creditor says: It is mine, i.e., the debt has not yet been paid, and it fell from me, and you, the debtor, found it, and the debtor says: It is in fact yours, i.e., I did borrow the money from you, but I paid you and was given the promissory note, and it fell from me, and you found it, the promissory note must be ratified through its signatories, even though the debtor admits it is a valid document. This is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: They should divide the amount written in the promissory note, i.e., the debtor must pay half of the recorded sum to the creditor.
וְהָוֵינַן בַּהּ – וְלֵית לֵיהּ לְרַבִּי הָא דִּתְנַן: שְׁנַיִם אוֹחֲזִין בְּטַלִּית, זֶה אוֹמֵר ״אֲנִי מְצָאתִיהָ״ וְזֶה אוֹמֵר ״אֲנִי מְצָאתִיהָ״ – זֶה יִשָּׁבַע שֶׁאֵין לוֹ בָּהּ פָּחוֹת מֵחֶצְיָהּ, וְזֶה יִשָּׁבַע שֶׁאֵין לוֹ בָּהּ פָּחוֹת מֵחֶצְיָהּ, וְיַחְלוֹקוּ?
The Gemara explains: And we discussed it once before and asked the following question about it: But doesn’t Rabbi Yehuda HaNasi agree to that which we learned in a mishna (Bava Metzia 2a), with regard to two people who came to court holding a garment, where this one is saying: I found it, and that one is saying: I found it; that this one takes an oath that he does not have claim to less than half of it, and that one takes an oath that he does not have claim to less than half of it, and they divide it? Why does Rabbi Yehuda HaNasi not maintain that in a case where the debtor and creditor are grasping a promissory note, there too they should divide the money?
וְאָמַר רָבָא אָמַר רַב נַחְמָן: בִּמְקוּיָּים – דְּכוּלֵּי עָלְמָא לָא פְּלִיגִי דְּיַחֲלוֹקוּ. כִּי פְּלִיגִי – בְּשֶׁאֵינוֹ מְקוּיָּים, רַבִּי סָבַר: מוֹדֶה בִּשְׁטָר שֶׁכְּתָבוֹ צָרִיךְ לְקַיְּימוֹ, וְאִי מְקַיֵּים לֵיהּ – גָּבֵי פַּלְגָא, וְאִי לָא – חַסְפָּא בְּעָלְמָא הוּא;
And in response to this question Rava said that Rav Naḥman said: In the case of a ratified promissory note, everyone agrees that they should divide it. Where they disagree is in the case of a note that is not ratified. Rabbi Yehuda HaNasi holds that in the case of a debtor who admits that he wrote a promissory note, the creditor is required to ratify it in court in order to collect the debt from him. And if he successfully ratifies it, the creditor collects half of the recorded sum, since the two parties are contesting ownership of the document. And if he is not successful in ratifying the note, it is merely a shard, i.e., a worthless piece of paper.
וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל סָבַר: מוֹדֶה בִּשְׁטָר שֶׁכְּתָבוֹ – אֵין צָרִיךְ לְקַיְּימוֹ, וְיַחְלוֹקוּ.
And Rabban Shimon ben Gamliel holds that in the case of a debtor who admits that he wrote a promissory note, the creditor is not required to ratify it in court in order to collect payment. Since the note is valid and fit for collection, they should divide it, i.e., the creditor collects half the sum, as the ownership of the document is contested. The positions of Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel are therefore the reverse of what the Gemara proposed in its explanation of the first baraita.
אֵיפוֹךְ.
The Gemara answers: Reverse the way the opinions of Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel are recorded in one of the two baraitot so that they are consistent in both baraitot.
וְאִיבָּעֵית אֵימָא: לְעוֹלָם לָא תֵּיפוֹךְ, אֶלָּא הָכָא בִּלְבָרֵר קָמִיפַּלְגִי –
And if you wish, say instead: Actually, do not reverse their opinions. There is no contradiction between them, because the issue in the first baraita is not whether or not a bill of sale must be ratified when the seller admits that he wrote it. Rather, here the tanna’im disagree with regard to verifying, i.e., they disagree about whether a litigant is required to verify all his claims in circumstances where his case is strong enough to have the court rule in his favor even if they were to disregard some of his claims. Generally, if one has evidence of presumptive ownership of a field he does not have to produce a bill of sale for it. Here, Rabbi Yehuda HaNasi holds that since the one occupying the land claims that he has a bill of sale, he must verify this claim by producing it. Rabban Shimon ben Gamliel holds that he is not required to produce it, as the claim of presumptive ownership suffices.
כִּי הָא דְּרַב יִצְחָק בַּר יוֹסֵף הֲוָה מַסֵּיק בֵּיהּ זוּזֵי בְּרַבִּי אַבָּא. אֲתָא לְקַמֵּיהּ דְּרַבִּי יִצְחָק נַפָּחָא, אָמַר: פְּרַעְתִּיךָ בִּפְנֵי פְּלוֹנִי וּפְלוֹנִי. אֲמַר לֵיהּ רַבִּי יִצְחָק: יָבוֹאוּ פְּלוֹנִי וּפְלוֹנִי וְיָעִידוּ. אֲמַר לֵיהּ: אִי לָא אָתוּ – לָא מְהֵימְנִינָא?! וְהָא קַיְימָא לַן: הַמַּלְוֶה אֶת חֲבֵירוֹ בְּעֵדִים – אֵינוֹ צָרִיךְ לְפׇרְעוֹ בְּעֵדִים!
The Gemara explains: It is like this case where Rav Yitzḥak bar Yosef was owed money by Rabbi Abba. The case came before Rabbi Yitzḥak Nappaḥa. Rabbi Abba said: I already repaid you the debt in the presence of so-and-so and so-and-so. Rabbi Yitzḥak Nappaḥa said to Rabbi Abba: The witnesses you have named, so-and-so and so-and-so, must come and testify that they saw you repay the loan. Rabbi Abba said to Rabbi Yitzḥak Nappaḥa: If they do not come, am I not deemed credible to say that I repaid the loan? But don’t we maintain that with regard to one who lends money to another in the presence of witnesses, the debtor need not repay him in the presence of witnesses, as he is deemed credible to say he repaid the debt even with no supporting testimony?
אֲמַר לֵיהּ: אֲנָא בְּהָהִיא – כִּשְׁמַעְתָּא דְמָר סְבִירָא לִי, דְּאָמַר רַבִּי אַבָּא אָמַר רַב אַדָּא בַּר אַהֲבָה אָמַר רַב: הָאוֹמֵר לַחֲבֵירוֹ ״פְּרַעְתִּיךָ בִּפְנֵי פְּלוֹנִי וּפְלוֹנִי״ – צָרִיךְ שֶׁיָּבוֹאוּ פְּלוֹנִי וּפְלוֹנִי וְיָעִידוּ. [אֲמַר לֵיהּ,] וְהָא אָמַר רַב גִּידֵּל אָמַר רַב: הֲלָכָה כְּדִבְרֵי רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, וְאַף רַבִּי לֹא
Rabbi Yitzḥak Nappaḥa said to Rabbi Abba: With regard to this issue, I hold like the halakha said by the Master, i.e., you yourself. As Rabbi Abba says that Rav Adda bar Ahava said that Rav says: If one says to another, i.e., if a debtor says to his creditor: I repaid you in the presence of so-and-so and so-and-so, it is required that so-and-so and so-and-so come to court and testify that they witnessed the repayment. Rabbi Abba said to Rabbi Yitzḥak Nappaḥa: But doesn’t Rav Giddel say that Rav says that the halakha is in accordance with the statement of Rabban Shimon ben Gamliel, that it is not required that a litigant verify all his stated claims if his case is sufficiently strong without those claims? And moreover, even Rabbi Yehuda HaNasi did not
אָמַר אֶלָּא לְבָרֵר! אֲמַר לֵיהּ: אֲנָא נָמֵי – לְבָרֵר קָאָמֵינָא.
say that the litigant loses the case if he cannot produce verification of his extraneous claims, but only that he is told to verify those claims if he can. Rabbi Yitzḥak Nappaḥa said to Rabbi Abba: I, too, am saying only that you are required to verify your claim if you can; if you cannot, you will not be required to pay.
מַתְנִי׳ מִי שֶׁפָּרַע מִקְצָת חוֹבוֹ, רַבִּי יְהוּדָה אוֹמֵר: יַחְלִיף, רַבִּי יוֹסֵי אוֹמֵר: יִכְתּוֹב שׁוֹבָר. אָמַר רַבִּי יְהוּדָה: נִמְצָא זֶה צָרִיךְ לִהְיוֹת שׁוֹמֵר שׁוֹבָרוֹ מִן הָעַכְבָּרִים! אָמַר לוֹ רַבִּי יוֹסֵי: כָּךְ יָפֶה לוֹ, וְלֹא יֵרַע כֹּחוֹ שֶׁל זֶה.
MISHNA: In the case of a debtor who repaid part of his debt, Rabbi Yehuda says: The creditor should exchange the promissory note for a new one stating the current balance and tear up the first promissory note. Rabbi Yosei says: The creditor may keep the original promissory note, and he should write a receipt for the payment he has received and give it to the debtor as proof of his partial payment of the sum recorded in the old note. Rabbi Yehuda said with regard to this arrangement: It is found that this debtor must now guard his receipt against being destroyed by mice, as if he no longer has the receipt, he will have to pay the entire sum recorded in the promissory note. Rabbi Yosei said to him: This situation is fitting for him; it is better that this procedure be followed, and the strength of the claim of this creditor not be weakened.
גְּמָ׳ אָמַר רַב הוּנָא אָמַר רַב: אֵין הֲלָכָה לֹא כְּרַבִּי יְהוּדָה וְלֹא כְּרַבִּי יוֹסֵי; אֶלָּא בֵּית דִּין מְקָרְעִין הַשְּׁטָר, וְכוֹתְבִין לוֹ שְׁטָר אַחֵר מִזְּמַן רִאשׁוֹן.
GEMARA: Rav Huna says that Rav says: The halakha is not in accordance with the opinion of Rabbi Yehuda, nor is it in accordance with the opinion of Rabbi Yosei. Rather, the halakha is that the court tears up the original promissory note and writes a different promissory note for the creditor, listing the new sum owed, dated from the time of the first document.
אֲמַר לֵיהּ רַב נַחְמָן לְרַב הוּנָא, וְאָמְרִי לַהּ רַב יִרְמְיָה בַּר אַבָּא לְרַב הוּנָא: אִי שְׁמִיעָא לֵיהּ לְרַב הָא [בָּרַיְיתָא] דְּתַנְיָא: עֵדִים מְקָרְעִין אֶת הַשְּׁטָר, וְכוֹתְבִין לוֹ שְׁטָר אַחֵר מִזְּמַן רִאשׁוֹן – הֲוָה הָדַר בֵּיהּ.
Rav Naḥman said to Rav Huna, and some say it was Rav Yirmeya bar Abba who said this to Rav Huna: If Rav would have heard this following baraita, as it is taught in a baraita that according to Rabbi Yehuda the proper procedure is that the witnesses tear the original promissory note and write another promissory note for the creditor listing the new sum owed, dated from the time of the first document, he would have retracted his statement that the court tears the promissory note and writes a new one.
אֲמַר לֵיהּ: שְׁמִיעַ לֵיהּ, וְלָא הֲדַר בֵּיהּ.
Rav Huna said to him: Rav heard the baraita, and nevertheless he did not retract his statement. While Rabbi Yehuda says in the baraita that the witnesses write a new promissory note, Rav maintains that this must be done specifically by a court. Why is this?
