Babylonian Talmud: Tractate Baba Bathra

Folio 172a

But this¹  is not done at the present time?²  — He replied to him: The Rabbis have made the necessary provision. Whosoever acts [accordingly] reaps the benefit;³  he who does not act [accordingly] has himself to blame, for any loss suffered.⁴

Raba son of R. Shila said to those who were writing deeds of transfer:⁵  When you write deeds of transfer enter⁶  the date of transfer⁷  if you know it; and if not, enter the date on which the deed is prepared,⁸  so that it⁹  might not have the appearance of a falsehood.

Rab said to his scribes, and R. Huna, similarly, said to his scribes: When you are at Shili write [in any deed] 'at Shili', although the information was given to you at Hini;¹⁰  when you are at Hini, write, 'at Hini',¹⁰  although the information was given to you at Shili.¹⁰

Raba said: If a man [who] is in possession of a bond of a hundred zuz, said, 'Convert it into two bonds each of fifty zuz',¹¹  his request must not be granted.¹²  What is the reason? — The Rabbis instituted a law¹³  which is acceptable to the creditor and is [also] acceptable to the borrower. It is acceptable to the creditor in that [the debtor is thereby] compelled to repay him [the entire loan];¹⁴  and it is [also] acceptable to the borrower in that [the legal force of] the bond is [thereby]¹⁵  impaired.¹⁶

Raba further stated: If a man, holding two bonds each of fifty [zuz:], requests that they be converted into one [bond] of a hundred [zuz], his request must not be granted,¹⁷  [because] the Rabbis have ordained a law¹⁸  which is agreeable to the creditor and is also agreeable to the borrower. It is agreeable to the creditor in that [the force of] his bond is not [thereby] impaired;¹⁹  and it is [also] agreeable to the borrower in that he is not [thereby]¹⁵  under pressure to repay the debt.²⁰

R. Ashi said: If a man holds a bond for a hundred zuz and requests that it be converted into²¹  one of fifty [zuz],²²  his request must not be granted. What is the reason? — We assume [the debtor] had already repaid him that [loan] and [that when] he asked him for the return of his bond²³  he was told [that] he²⁴  had lost it and [so] he wrote out for him a quittance²⁵  but [that later] he would produce that [new bond] and claim,²⁶  'This is [for] another [loan]'.²⁷

MISHNAH. [IN THE CASE OF] TWO BROTHERS, THE ONE POOR AND THE OTHER²⁸  RICH, WHOM THEIR FATHER HAD LEFT A BATH-HOUSE OR AN OLIVE-PRESS, [IF] HE BUILT THESE [TO BE LET OUT] ON HIRE, THE RENT BELONGS TO THE COMMON ESTATE.²⁹  [IF,] HOWEVER, HE BUILT THEM FOR HIS OWN [USE]²⁹  THE RICH [BROTHER] MAY³⁰  SAY TO THE POOR [BROTHER], BUY FOR YOURSELF SLAVES THAT THEY MAY BATHE IN THE BATH-HOUSE', [OR] 'BUY FOR YOURSELF OLIVES AND COME AND PREPARE [THEM] IN THE OLIVE-PRESS'.³¹

IF THERE WERE TWO [MEN] IN THE SAME TOWN [AND THE] NAME OF THE ONE [WAS] JOSEPH SON OF SIMEON AND THE NAME OF [THE] OTHER [WAS] JOSEPH SON OF SIMEON, NEITHER MAY PRODUCE A BOND OF INDEBTEDNESS AGAINST THE OTHER, NOR MAY ANOTHER [PERSON] PRODUCE A BOND OF INDEBTEDNESS AGAINST THEM.³²  [IF] A MAN FOUND AMONG HIS DEEDS [A QUITTANCE SHOWING THAT] THE BOND OF JOSEPH SON OF SIMEON [WAS] DISCHARGED, THE BONDS OF BOTH [ARE CONSIDERED TO BE] DISCHARGED. HOW SHOULD THEY PROCEED?³³  THEY SHOULD INDICATE THE THIRD [GENERATION].³⁴  AND IF [THEIR NAMES] ARE [ALIKE] TO THE THIRD [GENERATION], THEY ADD³⁵  [SOME PERSONAL] DESCRIPTION;³⁶  AND IF THEIR [PERSONAL] DESCRIPTIONS ARE ALIKE THEY WRITE, 'PRIEST'.³⁷

GEMARA. In a certain bond that was presented at the court of R. Huna there was [the following] entry:³⁸  'I.X, son of Y, borrowed from you³⁹  a maneh'.

1. The omission of the date it, a receipt.
2. When deeds are written without R. Abba's formula, and dated quittances are issued.
3. Lit., 'he who does, does'.
4. The provision was made by the Rabbis for the benefit of debtors who may wish to benefit by it. No man, however, is compelled to carry out a provision which was enacted solely in his own interests.
5. [H] deeds of gifts, or deeds of sale in which land security is entered. (Cf. Rashb.). Jastrow's definition is. 'An agreement by which one's landed estate is mortgaged in the form of a sale from date, independent of the loan to be consummated afterwards.' [Since agreement was accompanied by a kinyan from which the deed subsequently drawn up obtains its name. V. Rappaport. J., Das Darlehen, p. 70 ff.]
6. Lit., 'write'.
7. V. previous note. [In order to preclude the donor from presenting the gift to some one else.] In the case of a deed of sale, the buyer must be enabled, in addition, to seize such lands as wore sold during the period subsequent to the date of transfer. (Rashb.)
8. Lit., 'on which you stand'.
9. The entry of a date of which they were not certain.
10. The locale of a deed is the place where the deed is written, not where the transaction (gift, sale, or loan) which it records took place. The former, therefore, must be entered in the deed. According to Rashb. both places arc entered, thus: 'We wrote at … what we saw at …' [Hini and Shili were two places South of Sura and close to each other. The point in R. Huna's instructions to the scribes according to Obermeyer, op. cit. 320, is that they were not to regard the two localities as one and write 'Hini-Shili'.]
11. So that in case the debtor repays him half the debt he can return one of the two bonds.
12. Lit., 'we do not make them'.
13. Lit., 'thing'.
14. Having repaid half of the debt and received in return a quittance, the debtor is anxious to repay the other half at the earliest possible moment, so that he might secure the destruction of the bond and thus be liberated from the necessity of guarding his receipt 'from the mice'.
15. By the repayment of half of the amount mentioned in the bond.
16. The creditor will not be able to recover with it the balance, except on oath (cf. Keth. 87a. Shebu. 41a).
17. V. p. 753, n. 8.
18. V. p. 753. n. 9.
19. Instead of giving a receipt for half the amount repaid and thus impairing the force of the deed (cf. n. 1), one bond is destroyed while the other retains its full force.
20. Since he secures the return and destruction of one of the deeds and need not take care of any quittance.
21. Lit., 'make the thing'.
22. Even though he consents to enter on the new bond the date of the original bond.
23. Lit., 'and he said to him: Give me my bond'.
24. Lit., 'I', the creditor.
25. For the hundred zuz.
26. Lit., 'and say to him'.
27. The bond being made out for a sum of fifty zuz, the creditor could plausibly claim that the receipt for the hundred zuz was given for a totally different loan which had no connection whatsoever with the fifty zuz bond produced. Hence no bond must be exchanged at the request of a creditor even though he request the issue of a bond for a smaller amount in lieu of one containing a larger amount.
28. Lit., 'one'.
29. Lit., 'to the middle', i.e., it is divided between the two brothers in equal proportions.
30. Lit., 'behold'.
31. None of the brothers has the right to use the bequeathed joint estate (except, of course, by mutual consent) for any purpose other than that for which their father had originally intended it (v. supra 13a).
32. Since each can say that it was not he but the other who signed the bond.
33. If they desire to borrow, or buy from one another or from a third party.
34. They give their own names and the names of their fathers and grandfathers.
35. Lit., 'they shall write'.
36. Such as Joseph etc. the tall, the short, black, brown.
37. If one of these was a priest, or some similar patronymic. e.g.. Levite.
38. Lit., 'written'.
39. The name of the creditor not being entered, and the holder of the bond claiming that the pronoun referred to him.

R. Huna decided [that], 'from you' [might] even [signify] 'from the exilarch', and even 'from King Shapur'.¹  Said R. Hisda to Rabbah: Go and consider this matter,²  for in the evening R. Huna will question you on the subject. He went out, carefully considered [the matter], and found [the following Baraitha] wherein it was taught: [In the case of] a letter of divorce which bears [the signatures of] witnesses but no date,³  Abba Saul said: If there was written in it. 'I divorced you⁴  this day,' it is valid. This⁵  clearly proves that that day⁶  [is taken] to mean that day on which it was produced,⁷  [so] here also,⁸  'from you' must mean from that person who produced [the bond].⁹

Said Abaye to him: Is it not possible that Abba Saul holds the same view as R. Eleazar¹⁰  who maintains that the witnesses to the delivery¹¹  affect the legal separation,¹²  but here [surely, there is reason] to apprehend that it was lost!¹³  He replied unto him: [That a deed] was lost is not to be apprehended.¹⁴  And whence is it deduced that the losing [of a deed] is not to be apprehended? — For we learned: IF THERE WERE TWO [MEN] IN THE SAME TOWN [AND THE] NAME OF THE ONE [WAS] JOSEPH SON OF SIMEON AND THE NAME OF [THE] OTHER [WAS] JOSEPH SON OF SIMEON, NEITHER MAY PRODUCE A BOND OF INDEBTEDNESS AGAINST THE OTHER, NOR MAY ANOTHER [PERSON] PRODUCE A BOND OF INDEBTEDNESS AGAINST THEM. Either of them,¹⁵  however [it follows] may [produce a bond of indebtedness] against others. But why? Why not apprehend the loss [of the deed]?¹⁶  from this¹⁷  then¹⁸  it may be deduced that we do not apprehend the loss. And Abaye?¹⁹  We do not apprehend the loss [of a deed] by one [particular individual];²⁰  but we do apprehend loss [of deeds] generally by many.²¹

1. Since the pronoun might refer to anybody, the creditor is not in a position to establish his claim.
2. Lit., 'in it'.
3. The omission of the date renders a divorce invalid.
4. [So Ms.M. Cur. edd. 'hot'.]
5. The fact that it is valid if only the witnesses saw it in the hand of the husband on a certain date, that date being regarded as the legal date of the divorce.
6. On which witnesses saw it in the husband's hand though it, the document that date is not entered.
7. So long as the witnesses saw it on that day in his hand.
8. The case of tho deed wherein the name of the creditor does not appear.
9. Lit., 'from under whose hand it goes out'. Since the bond is produced by a certain person in the presence of the court that person should be assumed to be the creditor.
10. Cur. edd., 'Eliezer'.
11. Of a letter of divorce to the woman.
12. But the signatures of the witnesses, or the date, do not affect the legality of the divorce, hence he stated that the divorce was valid, v. supra 170a.
13. Lit., 'to falling'. i.e.. the bond may have been lost by the real creditor and the present claimant may have found it.
14. The person who presents a bond must be assumed to be the real creditor.
15. Lit., 'they'.
16. One Joseph, the creditor, might have lost the bond and the other Joseph who presents it might have found it.
17. From the fact that either of them is entitled to establish a claim against a third patty by the production of his bond.
18. Lit., 'but not'.
19. How, in view of the inference from our Mishnah, could he suggest that loss of the deed should be apprehended?
20. It is most unlikely that a particular person of the very same name as the one who presents the bond should have lost it.
21. It is not unusual for people to lose their bonds and for others to find them. Hence, as regards the bond presented at R. Huna's court, Abaye was well justified in suggesting that loss of the deed should be suspected.