Shnayim Adukin Bi-Shtar
summarized by Josh Wine
Sources and questions:
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?
In the context of the discussion of Shnayim adukin be-tallit (Bava Metzia 7a) (two people holding onto a garment, each claiming full ownership), the gemara introduces, by way of comparison, the case of Shnayim adukin bi-shtar. (Generally, a shtar chov while in the possession of the malveh, serves as proof of the transaction, enabling him to extract the debt, while in the hands of the loveh it serves as a receipt, proving that the loan has been repaid. Thus, in our case where each holds the document, there is a safek whether the debt has been paid off.)
"Our Rabbis taught: Two are holding on to a shtar (document). The malveh (lender) says, 'It is mine and fell from my [possession] and he [the borrower] found it.' The loveh (borrower) said, 'It is yours and I paid off [the debt] to you.'" (Bava Metzia 7a)
The two cases exhibit strikingly parallel features:
a) Two parties come to the beit din each claiming complete ownership of a disputed article. (In the case of shnayim adukin bi-shtar, the "article" is the chov represented by the shtar.)
b) Each party is physically holding (tofes) the article.
c) The din is yachloku (divide).
Despite the obvious correspondence in the description of the cases (and the apparent assumption of the gemara that they are essentially identical), there is considerable scope for debate as to the nature of that correspondence. Quite simply, we must examine and justify the evident implication that tallit and shtar fall into the same halakhic category. Are we to regard the shtar (like the tallit) as being of intrinsic value (gufo mammon), or is its significance merely symbolic? Similarly, is the din of yachloku referring to the shtar itself, or to the value it represents?
The objective of this shiur, therefore, is to explore in some detail the conceptual possibilities raised by the juxtaposition of these two beraitot. The investigation will be divided into three sections:
I. Comparison of the Bavli and the Yerushalmi in their approach to the beraita.
II. The significance of tefisa, machloket Rambam and Ramban
III. The nature of yachloku.
I. Comparison of the Bavli and the Yerushalmi in their approach to the beraita
"Two were holding on to a shtar. This one says, '[It is] mine and I lost it,' and this one says, 'It is mine and I paid it to you.' The [authenticity of] the shtar should be established by its signatories - the words of Rebbi. R. Gamliel says: 'Divide.'
R. Elazar said, 'All goes after the one who is holding [the portion of the shtar containing the signatures of] the witnesses.'" (Yerushalmi Bava Metzia 1:1)
Aside from differences in girsa, there is a more fundamental distinction between the Bavli and the Yerushalmi. While the latter appears to accept the beraita ki-peshuto – Rebbe rejecting splitting the shtar, the Bavli rejects this approach and (re)interprets peshat to concord with the general principles of shnayim ochazin.
"The Master [Rebbi} said, 'The [authenticity of the] shtar should be established by its signatories,' and thus all is awarded to the malveh. [But] is [Rebbi] not aware of the mishna of 'shnayim ochazin' (where it is taught that when two are holding a tallit, the latter is divided)? Rava said, 'Rav Nachman said, when [its authenticity] is established, all agree that the ruling is 'Divide,' they argue only on an unestablished shtar ...' R. Elazar says [the shtar is divided equally], 'only where each one holds a portion of both tofes and toref, but when one holds the tofes and the other the toref, the former takes the tofes, the latter the toref.'" (Bava Metzia 7a-b)
Thus, we are informed that, in fact, the Tanaim agree both that the case involves the principles established in shnayim adukin be-tallit, and that the din is yachloku. In effect, the Bavli has subdued possible dissent on the presumed similarity of shtar and tallit.
It is incumbent upon us to explore the Yerushalmi for two reasons. Firstly, in order to appreciate the significance of the Bavli's departure from peshat. Secondly, to furnish the conceptual categories which will illuminate machloket Rishonim on the nature of tefisa and yachloku.
The simplest understanding of peshat in the beraita is as follows:
a) Rebbi holds that the entire chov is awarded to the malveh. (This interpretation is the initial suggestion of the Bavli in understanding Rebbi, subsequently rejected.)
b) R. Shimon ben Gamliel [ki-pushuto] rules yachloku regardless of the proportion of the document in the hand of each party.
c) R. Elazar commenting on the beraita amends the din of yachloku in accordance with the principle Zeh notel ad makom she-yado maga'at. (This may be a simplified version of R. Eliezer. It is closer to his words that the principle of "Zeh notel ad makom she-yado maga'at" applies just to the distinct portions of the shtar - toref ve-tofes, and not to each cm. of paper. The exact definition of toref and tofes is a machloket Rishonim. It is clear, however, that only one of three portions mentions zeman, enabling the malveh to collect from property sold by the loveh after the zeman. This portion is therefore the more valuable.)
Assuming that all three refer to the chov rather than the shtar itself (we will examine this issue in part III), we may correlate their dinim to three possible sevarot as to the halakhic nature of shtar:
1) Rebbi views the shtar as EIDUT BIKHTAV; in other words, the shtar itself is considered testimony to the existence of a chov. Tefisa is of only secondary importance insofar as a shtar in the hands of a loveh may be regarded as repaid.
2) R. Shimon ben Gamliel treats the shtar as both a proof of status for its possessor, and as a HANDLE on the money it represents. Thus, where both sides are holding the shtar, each may be regarded as having a supported claim to the money, irrespective of the portion of the shtar under the grasp of either.
3) R. Elazar looks at the shtar as GUFO MAMMON, that is to say, tefisa on the shtar is tantamount halakhically to tefisa on the money itself. Like other cases of shnayim adukin be-chefetz, the principle zeh notel ad makom she-yado maga'at applies, i.e., each receives a fraction of the chov in proportion to the quantity of paper which is tachat yado.
II. The Significance of Tefisa – Machloket Rambam and Ramban
The problematic identification of shtar with tallit, apparently allowed to pass uncontested by the Bavli, returns to prominence as a subtext to the machloket Rishonim regarding tefisa and yachloku. The three sevarot of part I provide a sound basis for understanding these machlokot.
Discussing our case, the Rambam writes:
"Two were holding onto a shtar. The malveh says, 'It is mine and I took it out to retrieve [the loan] from you [the borrower].' The borrower says, 'I paid it and it fell from me.' The lender shall swear that he is owed not less than half the value, the borrower shall swear that he has paid off not less than half the value. And the borrower is obliged to pay half the value." (Hilkhot Malveh Ve-loveh 14:14)
We must note that the Rambam fails to mention the apparent conclusion of the Bavli that:
"One holds the tofes, one holds the toref, this one takes the tofes, this one the toref." (Bava Metzia 7b)
In contrast, the Ramban (s.v. u-be-Yerushalmi) explicitly accepts the conclusion of the gemara in accordance with R. Elazar. It appears that the Ramban views the shtar as, in some sense, gufo mammon, hence the object of tefisa and chazaka like a tallit. The Rambam may be said to follow the second of our three sevarot - shtar as a handle.
Parenthetically, we must explain how the Rambam could deviate so sharply from the conclusion of the gemara. We will cite three solutions:
1) The Rambam possessed a different girsa of the Bavli (Maggid Mishneh ibid.).
2) His pesak is in accordance with the Yerushalmi and against the Bavli, not uncommon for the Rambam.
3) He read the gemara's discussion of zeh notel tofes ve-zeh notel toref as a parenthetical clarification of R. Elazar, rather than a conclusion (Shakh Choshen Mishpat 65).
III. The Nature of Yachloku
The Gemara states:
"[The division] is of the value for if you don't say thus, then [the case of] shnayim ochazin be-tallit, if it is divided physically then there is a monetary loss? This is not a problem to explain for the halves are fit for children [therefore there is no loss] ... But what about the care of two riding on animal, here also is it divided physically? Surely there is a monetary loss! Granted, the halves of a kosher animal are fit to eat, but a non-kosher animal? Certainly there is monetary loss. Therefore, we surely divide according to the value, here also we divide (the shtar) according to its value." (Bava Metzia 7b-8a)
While there exists consensus among the Rishonim that yachloku refers to damim (monetary value), the Ritva questions this position:
"We have established that a tallit whose halves after splitting would be unfit even for children, must be split by value rather than physically divided. Thus, the argument runs, the shtar is also divided by value for its separate halves are nothing but paper surely a monetary loss. Furthermore, in the case of animal divided between two, we established that a non-kosher animal is certainly divided by value, for half a non-kosher animal is not fit as meat. However, the principle that the non-kosher animal be divided by value in order to avoid monetary loss is only a sevara (opinion) based on logic.
"Even were we to accept the principle in the case of non-kosher animals, it would not necessarily apply to shtarot, since in the latter case, if the shtar is physically divided while the lender loses, the borrower has surely gained. However, we may reject the view that the division of the shtar is physical. In the case of the non-kosher animal, physical division of the animal would cause loss to both and is thus immoral (midat Sedom) [i.e., the sevara is accepted.]. And since we have now proven that "division" in the Mishna can mean a division of value, it makes sense to apply this to the case of shtar, for the following reason: If the shtar is physically divided, the resulting division is unfair and imbalanced, not reflecting the equality of their tefisa for the lender is left only with paper while the borrower keeps all of the disputed money." (Ritva s.v. Ve-yachloku nami de-ke'amar)
The Ritva, therefore, bases his justification of chaluka be-damim on the imperative of avoiding hefsed mammon, a logic not restricted to shtarot. The Rosh, in contrast, holds chaluka be-damim to be the result of a particular feature in shtarot:
"We divide according to value and not physically, since the main points of the shtar, for example the signatures, the place, the sum of the loan and the names of the parties, are considered to be held equally by the disputants because each half is useless without the other." (Tosafot HaRosh s.v. Le-R. Elazar)
In other words, the shtar is considered an indivisible unit and is thus excluded from the principle of zeh notel ad makom she-yado maga'at, since the latter rule assumes the separate portions of the shtar to be independent objects of ownership, precisely what the Rosh rejects. (The Rosh does accept that the zeman may be treated separately since the shtar is valid even without the zeman. It is possible that there is little practical disagreement between the Ritva and the Rosh since the definition for the Rosh of "indivisible identity" may include the Ritva's principle of hefsed mammon.)
Having established the principle of chaluka be-damim as applicable to shtarot, there is a further machloket regarding the definition of damim. Tosafot rule that damim should be assessed according to the market value of shtarei chov:
"We don't divide the loan according to its face-value, rather we evaluate its worth in the marketplace and split the latter." (The market value of the shtar will be discounted for risk and opportunity cost.) (Tosafot s.v. Ve-yachloku nami le-dami)
The Sefer Ha-terumot describes the damim as the face value of the chov:
"... here also we divide the value of the shtar. If it was a loan of 100, he should pay off 50 and retain the other 50." (Sefer Ha-terumot, Sha'ar 23:1)
Notwithstanding the Sefer Ha-terumot's acceptance of a distinction between tofes and toref (unlike the Rambam), it is reasonable to suggest that this machloket stems from the sevarot of part I, albeit in an amended form. Tosafot's understanding is the natural consequence of viewing the shtar as gufo mammon: it has an objective and intrinsic value that may be assessed regardless of its function as evidence in the dispute. The Sefer Ha-terumot makes a clearer distinction between the shtar and what it represents. While it may have an intrinsic value as shtar and bond, its function in our case is as a proof of the status of a debt owed by the loveh to the malveh. Shnayim adukin bi-shtar, therefore, is not considered to signify a doubt as to the ownership of a bond; rather, it creates a doubt as to the state of the chov. The beit din thus make their ruling on the chov between the parties and not on the value of the shtar in the marketplace.
Sources for the next shiur:
- 8a: "Amar Rami Bar Chama… ana akni."
- 10a: "Rav Nachman ve-Rav Chisda… zakeih li."
- Chiddushim Ha-meyuchasim le-Ritva, s.v. amar Rami Bar Chama; Chiddushei Ha-Ran, s.v. ela lav.
- Rashba, s.v. ha de-amar; Tosefot Ha-Rosh, s.v. ta'aseh (appears in Shita Mekubetzet).
- Explain the debate between Rashi and Tosefot as to the meaning of "shutefin she-ganvu."
- What is the difference between our sugya and the sugya on daf 10, according to the view cited in the Chiddushim Ha-meyuchasim Le-Ritva? Does Rashi agree with this position?
- Explain the debate between the Ra'avad and the Rosh.