Bava Metzia - Daf 7
- שנים אדוקים בטלית זה נוטל עד מקום שידו מגעת וכו'
Rav Tachlifa of Eretz Yisroel taught a Baraisa: שנים אדוקים בטלית – If two litigants are clutching a cloak, each claiming ownership, זה נוטל עד מקום שידו מגעת וזה נוטל עד מקום שידו מגעת – this one takes as far as his hand reaches, [as does the other], והשאר חולקין בשוה – and the rest of the cloak is divided evenly. Rebbe Abahu indicated that they must swear. Our Mishnah, which stated only that the cloak is divided evenly, is explained by Rav Pappa: דתפיסי בכרכשתא – where they are holding the fringes of the cloak, but no significant portion of the cloak itself. Rav Mesharshiya inferred from this Baraisa that if someone grasps three-by-three fingerbreadths of a סודרא – kerchief typically used for חליפין, the transaction is effected (although the rest is still in its owner’s hand), דכמאן דפסיק דמי – because [the portion in his hand] is considered like it is cut off from the rest of the kerchief.
- שנים אדוקין בשטר (מודה בשטר שכתבו)
A Baraisa states: שנים אדוקין בשטר – if two people (a creditor and debtor) are clutching a document of debt, and the creditor says it is his, and he lost it and subsequently found it, and the debtor says that although the document is authentic, he already paid the debt (and was given the שטר, and later lost it), Rebbe says: יתקיים השטר בחותמיו – the document must be certified through its signatures as being authentic. Rabban Shimon ben Gamliel says: יחלוקו – they should divide the debt equally. Rebbe does not mean that an authenticated שטר would be collected in full, because this would contradict our Mishnah, where the disputed cloak is divided. Rav Nachman explains that all agree that the debt of a certified שטר is divided equally. Their machlokes concerns an uncertified document. Rebbe holds: מודה בשטר שכתבו צריך לקיימו – even where [a debtor] admits he wrote a document (but claims he repaid it), [the creditor] must still certify it to collect. Since the debtor is the one who validated the document, he can also claim it has been paid. Therefore, if the creditor certifies it himself, they will divide the debt amount; if not, he collects nothing. Rabban Shimon ben Gamliel holds that if a debtor admits the שטר is authentic, אין צריך לקיימו, so the debt here is divided without authentication.
- Machlokes if חיישינן לפרעון
The Baraisa continued: נפל ליד דיין – if [the שטר] fell into a judge’s hand, the Tanna Kamma says: לא יוציאו עולמית – [the litigants] can never retrieve it. Rebbe Yose says: הרי הוא בחזקתו – it remains in its status as a valid שטר. Rava explains this means that someone found a שטר which was certified (with a "הנפק") by a judge. The Baraisa teaches that not only where the שטר was not certified (where the loan may never have been issued), but even where it was certified, and the loan was made, it is still not returned to the lender, דחיישינן לפירעון – because we are concerned about possible payment by the borrower. Rebbe Yose says the שטר is returned to the lender, and we are not concerned it was paid. The Gemara asks that this contradicts a different opinion of Rebbe Yose’s. A Baraisa teaches that if a kesubah is found, and the husband claims it is paid, it is not given to either party. Rebbe Yose says that if she is still married (and the time for payment has not arrived), the kesubah is returned to the wife. If she has been divorced or widowed, it is not given to either party, because he is concerned about payment!? Three answers are given, two of which reverse the opinions of the first Baraisa.
