7a Modeh Bi-shtar She-katvo

  • Rav Yair Kahn

 

Sources and questions:

1.  7a "Tanu rabanan shnayim adukim bi-shtar ... de-lo mikyim lei yachloku."

2.  Ketubot 19a "Ela ta'ama de-R. Meir ... vechutu le-dina," Tosafot s.v. Modeh.

3.  Bava Batra 5b "Iba'i lehu ... lo amrinan ma li leshaker."

Questions:

1.  In the case of "modeh bi-shtar she-katvo," why shouldn't the malveh be believed based on "shtarkha be-yadi mai ba'i?"

2..What "migo" does the loveh have?  Why is this migo less convincing than a normal migo?

3.  Can migo be applied when it contradicts the chazaka of "shtarkha be-yadi mai ba'i?"

4.  How would you define the status of an unverified shtar?

*****************************************

            According to Torah law, a shtar signed by two witnesses, is valid, although the authenticity of their signatures was not verified.  Nevertheless, Rabbinic law demands that the signatures be verified, in order to diminish the possibility of forgery.  This process is known as "kiyum hashtar."

            The case discussed by our sugya, refers to a shtar whose signatures were not verified.  However, the borrower did not contest the validity of the shtar.  On the contrary, he implicitly admitted the credibility of the shtar by registering a claim that the loan was already repaid.  Can the lender collect the loan on the basis of this unverified shtar, since the borrower implicitly admitted that the shtar is authentic?  Or, perhaps, the loan cannot be collected on the basis of this unverified shtar.  After all, the bottom line is that the borrower denies that he still owes any money.  This shiur will focus on this interesting case known as modeh bi-shtar she-katvo."  It will also touch upon the more general question of what is included in the testimony of a shtar.  Furthermore, it will analyze the requirement of kiyum shtar, in order to define the status of a shtar which lacks kiyum.

            However, before discussing kiyum shtar directly, it is important to note how a shtar halva'a works.  A shtar halva'a is written by the "loveh" - borrower, and signed based upon his request.  It remains in the possession of the loveh until he receives the loan and transfers the shtar to the "malveh" - lender.  At this point it is suggested that the malveh attain court certification regarding the authenticity of the shtar, i.e. kiyum hashtar known as "henpek."  The malveh retains possession of the shtar until the loan is repaid, at which point he returns the shtar to the loveh, who normally destroys the shtar, and with it, evidence of the loan. 

            There are several advantages for the malveh in insisting upon a shtar, as opposed to a non-documented loan - "milveh ba'al peh."  The one which interests us at the moment is that the shtar prevents the loveh from claiming that he repaid the loan.  Unless supported with evidence, we reject this claim on the basis of "shtarkha biyadi mai ba'i" - if the loan was repaid why did the shtar remain in the possession of the malveh.

            In our case, modeh bi-shtar she-katvo, the authenticity of the shtar was not verified.  However, instead of claiming that the shtar was forged, the loveh admitted the loan implicitly by claiming that it was repaid.  The argument quoted by our sugya, is whether we believe the loveh that he repaid the loan. 

            Based on the above, we must question the opinion that the loveh is believed.  After all, the malveh has a potent counter argument; shtarkha biyadi mai ba'i.  If the loveh repaid the loan, why is the shtar still in the possession of the malveh.  How is this case different from the standard case of milveh bi-shtar in which the claim of repayment is rejected?

I. Migo

            The simplest answer to this question is "migo."  Although the loveh is not usually believed, in this case, where he had the potential to claim forgery, his claim that he paid the loan is bolstered.  Due to the migo, we ignore the counter argument of shtarkha biyadi mai ba'i, and accept the loveh's claim, in spite of the shtar being in the possession of the malveh.

            According to this approach, the conflicting opinion, which doesn't accept the loveh's claim, apparently does not apply migo in this case.  One possible reason for rejecting the migo was raised by Tosafot in Ketubot (19a s.v. modeh).  They maintain that in order to be an effective migo, the potential claim has to be at least as attractive as the actual claim.  In our case however, since the claim of forgery, as opposed to repayment, can readily be contradicted by witnesses, this condition is not met. 

            According to Tosafot, the argument in our gemara is a migo question.  An exhaustive discussion however, will take us way beyond the parameters of this shiur.  For our purposes it is sufficient to note that Tosafot's suggestion would be rejected by many commentators.  In fact, even Tosafot will probably agree that the conflicting opinion accepts the migo, although it is unattractive.  Therefore, we will offer an alternate suggestion to explain the conflicting opinions of modeh bi-shtar she-katvo. 

II. Migo Versus Chazaka

            Even if we argue that the suggested migo is effective, it is not clear that a migo can be applied in our case.  After all, based upon the migo, we assume that the loveh repaid the loan, but left the shtar in the possession of the malveh. However, this contradicts the chazaka of shtarkha biyadi mai ba'i, which is based on the assumption that at the point of payment the malveh returns the shtar to the loveh.  Therefore, the application of migo in our case would depend on whether or not a migo supersedes chazaka (see Bava Batra 5b).  If so, the conflicting opinions of our gemara, may simply be an application of the general question of migo versus chazaka.

III.  Migo Versus Shtarkha Biyadi Mai Ba'i

            The above is true if we categorize shtarkha biyadi mai ba'i as a regular chazaka (see Tosafot ibid s.v. Mee).  However, it is possible to claim that shtarkha biyadi mai ba'i is not merely an independent chazaka.  Rather, it is considered as part of the testimony of the shtar.  So long as the shtar is found in the malveh's possession, it testifies to the existence of the debt.  (If two witnesses would testify that the loan was repaid, this would clearly not be defined as trei u'trei.  Instead, based on the witnesses the shtar would be nullified, thus undermining the testimony of the shtar.  Nevertheless, if not explicitly contradicted by witnesses, we can view a shtar in the possession of the malveh as evidence of the obligation.)  If so, even if we agree that migo can override a chazaka, we can nonetheless maintain that the loveh is not believed with a migo against a shtar.

            According to this formulation, it should be clear that migo is not applied, similar to a migo which runs contrary to eidim (see Bava Metzia 81b).  Perhaps the question of applying this migo depends on whether we view shtarkha biyadi mai ba'i as an independent chazaka, or as part of the testimony of the shtar.  In other words the conflicting opinions in our sugya do not revolve around a local migo question, but hinge upon a broader issue; what is included in the testimony of a shtar.

            In general, this understanding of the sugya of modeh bi-shtar she-katvo is appealing.  However, the application to our particular gemara is troubling.  Normally, the question of modeh bi-shtar she-katvo refers to a situation in which the shtar is in the sole possession of the malveh.  Therefore, shtarkha biyadi mai ba'i, whether a chazaka or testimony, is in full force against the migo.  In our gemara however, the shtar is in the joint possession of both malveh and loveh.  This would seem to undermine shtarkha biyadi mai ba'i, since the loveh is holding on to the shtar as well as the malveh.

            Perhaps, we can solve this problem if we view shna'im ochazim - joint possession - as if each party was totally in possession of half.  If so, regarding half of the shtar, I consider the malveh in sole possession, and decide the halakha accordingly.  Regarding the other half, the loveh is defined as the sole possessor. 

            However, this solution seems a bit artificial when applied blindly to shtar.  The bottom line should be that there is no possibility in our case of applying shtarkha biyadi mai ba'i, since the malveh lacks uncontested possession of the shtar.  Furthermore, in previous shiurim we already noted that not all Rishonim agree with this view of shna'im ochazim (see for instance shiur #16).  The conflicting approach defines joint possession as a situation where neither party is in possession, since the partial possession of the one competes with and nullifies the possession of the second party.  This approach is certainly reasonable regarding shtar, where the possession is representative of whether or not the loan was repaid.  Hence, the possession of one party is not only competitive, but actually undermines the significance of the possession of the second.

IV.  The Status of an Unverified Shtar

            Perhaps, by taking a closer look at our gemara, we can offer another explanation of the argument of modeh bi-shtar she-katvo.  Our sugya explains the opinion that maintains that the malveh cannot collect in the case of modeh bi-shtar she-katvo as follows:  "[An unverified shtar] is chaspa b'alma - totally worthless, who awarded it the status of a shtar, the loveh, he however claims that the loan was paid."  From this statement it appears that an uncertified shtar lacks that status of a shtar.  It is merely chaspa b'alma, however it is not a shtar.  A shtar requires kiyum in order to achieve the halakhic status of a shtar, in order that it should be accepted as an affidavit on par with testimony.

            Let us recall however, that certification is not needed according to Torah law.  The requirement of kiyum was rabbinically introduced in order to limit the possibility of forgery.  Therefore, it is reasonable to arrive at the contending conclusion, that a shtar which lacks kiyum IS considered a shtar, and the kiyum is merely an additional and external rabbinic requirement.

            Perhaps, this is the root of the modeh bi-shtar she-katvo controversy.  The opinion which allows the malveh to collect with this unverified shtar, maintains that the status of shtar is not undermined by lack of verification.  There is an external rabbinic requirement to certify the authenticity of the shtar to combat forgery.  In our case of modeh bi-shtar she-katvo the possibility of forgery has been eliminated by the admission of the loveh.  Therefore, the malveh can collect the loan with this shtar, although it lacks kiyum.  (See Tosafot Ketubot 19a s.v. modeh, in the name of Rashi.)

            The conflicting opinion, which doesn't allow the malveh to collect with this shtar, argues that the rabbinic prerequisite of kiyum is not merely an external addition.  Rather, the basic requirements of shtar were rabbinically redefined.  Accordingly, a shtar which lacks certification is not considered a shtar at all.  Hence, in our case of modeh bi-shtar she-katvo, the malveh cannot collect the loan based upon this shtar.  Although the loveh implicitly admitted the authenticity of the signatures, since he argued repayment, he denied the document the status of a functioning shtar.

            These conflicting opinions can be applied with ease to our case of joint possession since the chazaka of shtarkha biyadi mai ba'i is not a relevant factor.  Shna'im adukim merely limits the above discussion to half the loan (according to our gemara).  Rebbi rules that the shtar requires verification in order to allow to malveh to collect half of the debt, since he considers a non-verified shtar as non-valid.  Rashbag, on the other hand, considers a non-verified shtar as valid.  Kiyum according to him, fulfills an external requirement to clarify that the shtar is not a forgery. Therefore in our case of joint possession, the malveh can collect half of the loan stated in the shtar, since the loveh himself implicitly confirmed that the shtar was not a forgery..     

Summary

            We explored the question of modeh bi-shtar she-katvo from several perspectives.  We began with the assumption that the malveh should be believed (once the possibility of forgery has been eliminated by the admission of the loveh) since the malveh can argue shtarkha biyadi mai ba'i.

            Initially we based the opinion that the loveh is believed on his potential claim of forgery (migo).  We then examined the legitimacy of applying migo to our case.  In this context we discussed migo where the potential claim is unattractive.  We also raised the issue of migo versus the chazaka of shtarkha biyadi mai ba'i.  From this point we continued with a brief discussion of whether shtarkha biyadi mai ba'i is merely an external chazaka, or whether it is part of the testimony of the shtar.

            Migo versus shtarkha biyadi mai ba'i applies to the standard case of modeh bi-shtar she-katvo where the shtar is in the sole possession of the malveh.  We were troubled in applying this interpretation to the sugya in Baba Metzia where both the malveh and loveh are in joint possession of the shtar.  In this context, we argued that shtarkha biyadi mai ba'i is inappropriate.  Therefore the position of the loveh should clearly prevail based on his uncontested migo.

            In response we offered an additional interpretation of this controversy.  Accordingly the conflict is rooted in how to understand the rabbinical requirement of kiyum shtar.  If this is merely an external prerequisite to help eliminate the possibility of forgery, then a shtar which is admittedly not a forgery is considered a bona fide shtar although it lacks kiyum.  Hence, the malveh is allowed to collect the loan based upon this unverified shtar.  If, on the other hand, the Rabbis introduced kiyum as a critical component of every shtar, then lack of kiyum undermines the very status of "shtar."  Consequently, the malveh would not be permitted to collect with this unverified document, even though he himself admitted its authenticity.

Next week we will discuss the division of shtar between two people. You should finish the sugya of shtar (to the end of 7b).

 

Sources and questions for next week's shiur:

1. a) Bava Metzia 7a "Tanu Rabanan shnayim adukin bi-shtar ... harei hu be-chezkato."  The first time through, look only at the actual text of the beraita.  Realize the simple reading of the text, and what might be the conceptual difference behind the opinions.

   b) ibid., continue "Amar mar yitkayem ... de-lav mekayem lei yachloku."  How does the gemara's explanation of the beraita differ from yours?  Why, in your opinion, did the gemara deviate from the peshat?  According to the gemara's understanding, what might be the conceptual difference between the opinions?

   c) Bava Metzia 7b "Amar R. Elazar machloket ... nami le-demei,"  Rashi s.v. Machloket (Tosafot s.v. Machloket).

Yerushalmi Bava Metzia 1:1 (at the end) "Ve-tani shnayim she-hayu ... be-eidim."  How does the simple understanding of the Yerushalmi differ from Rashi (and Tosafot)?

   d) In your opinion, is there a viable comparison between "tallit" and "shtar?"

2.  Ramban s.v. U-beYerushalmi be-emtza dibbur Ve-yesh lefaresh be-denei ... ve-rakh."  Rambam Hilkhot Malveh ve-Loveh 14:14 (Maggid Mishneh ad loc.  In your opinion, is there another explanation for the Rambam that does NOT require changing the text?)

[Shakh Shulchan Arukh Choshen Mishpat 65:40.]

3.  Ritva s.v. Ve-yachloku nami de-keamar; Tosafot s.v. Ve-yachloku; Sefer Ha-teruma sha'ar 23, siman 1.  In what does the Sefer Ha-teruma disagree with Tosafot?  What might be the logic behind the argument?