Bava Metzia - Daf 13
- עדיו בחתומיו זכין לו
The Gemara had asked why a loan document may be written for a potential borrower before the loan is issued, since they may collect from purchasers’ properties from the date in the שטר, earlier than the actual loan date. Rav Assi says only שטרי הקנאה – documents of acquisition may be written beforehand, because the lien actually begins immediately, even if the loan is never issued. Abaye answers: עדיו בחתומיו זכין לו – the witnesses, with their signatures, acquire a lien for [the lender] at the time of signing, even before the loan. This is challenged by a Mishnah which states that if one found gittin, gift documents, or receipts, they may not be returned to the recipient written in the שטר, because perhaps they were written to be given, ונמלך עליהם שלא ליתנם - but [the author] reconsidered and opted not to give them. According to Abaye, the שטר should take effect even if they were never given, since the signing effects the transaction!? The Gemara answers: הני מילי היכא דקא מטו לידיה – this principle only applies where [the שטר] reached [the recipient’s] hand, whereby the transaction takes effect retroactively from signing. If the שטר was never given, its transaction does not take effect.
- חיישינן לפרעון ולקנוניא
Abaye is challenged from our Mishnah, which taught that a שטר with a property lien may not be returned according to Rebbe Meir. The previous Daf explained that the case is where the debtor admitted to the debt (which is why a שטר without a lien is returned), and we are concerned that the שטר was written before the loan was actually issued, leading to unlawfully collecting property from earlier purchasers. According to Abaye, however, that the lien takes effect at signing, such collection would be legitimate, and the שטר should be returned!? Abaye could explain the reason the שטר is not returned differently: דחייש לפרעון ולקנוניא – [Rebbe Meir] is concerned about possible payment and collusion. Perhaps the loan was actually paid up, and the debtor received (and later lost) the שטר. He may be (falsely) admitting that the debt is unpaid, as a conspiracy with the creditor to collect the “debt” from purchasers (who purchased without a compensation guarantee against collection), which the conspirators will later divide between themselves.
- How Shmuel and Rebbe Elazar who hold אין חוששין לפרעון ולקנוניא explain the case in the Mishnah
Shmuel holds we are not concerned about collusion between the debtor and creditor. Since he cannot explain the Mishnah like Abaye, the Gemara says he can explain the Mishnah כשאין חייב מודה – where the debtor does not admit to the debt, so the שטר is not returned. A שטר without a lien is returned (according to Rebbe Meir), because Shmuel says that Rebbe Meir holds: שטר חוב שאין בו אחריות נכסים – a document which has no property lien, אין גובה לא ממשעבדי ולא מבני חרי – [the creditor] cannot collect either from encumbered (sold) property, nor from “free” (unsold) property. This שטר cannot be used for any collection, and it is returned for one purpose: לצור על פי צלוחיתו של מלוה – to wrap over the mouth of the creditor’s bottle. On amud beis, Rebbe Elazar takes the same view as Shmuel, and explains that the Rabbonon hold a שטר without a property lien can be collected. Rebbe Yochanan takes Abaye’s view that the Mishnah’s case is where the debtor admits to the debt, and he explains the Rabbonon’s opinion. A Baraisa is then brought which supports Rebbe Yochanan’s view and disproves Shmuel’s and Rebbe Elazar’s.
