THOUGHTS ON THE DAILY DAF
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Bava Basra, 70
BAVA BASRA 70 - Sponsored by Rabbi Kenny Cohen of Yerushalayim, in honor of
his Rebbi, Rabbi Gedalya Rabinowitz.
1) A "MIGU" AGAINST A "SHTAR"
QUESTION: Rav Amram discusses a case in which a person deposits an object
with a Shomer to watch, and he writes a Shtar attesting to the deposit of
that object with the Shomer. Rav Amram asks what is the Halachah when the
owner of the object presents the Shtar and asks the Shomer to return it to
him, and the Shomer says that he already returned it. Do we believe the
Shomer (with a Shevu'ah) since he has a Migu that he could have exempted
himself by saying that the object was lost through an Ones and by making a
Shevu'ah (Shevu'as ha'Shomrin), or does the fact that the Mafkid is holding
a Shtar override the Migu, because the Shtar is tantamount to testimony that
the object was not yet returned?
Rav Amram does not ask what the Halachah is in a case in which a person who
*borrowed* money claims that he paid back the loan. It is obvious to Rav
Amram that, in that case, the borrower is not believed, because he has no
Migu, and because the Malveh is holding a Shtar. Why, though, does Rav Amram
not ask what the Halachah is in a case in which the borrower claims that he
paid back the loan and the Shtar is *not* Mekuyam? The same question should
apply there -- do we believe the borrower with a Migu that he could have
said that the Shtar is forged and require the Malveh to be Mekayem the
Shtar, or does the fact that the Malveh is holding a Shtar override the
The Halachah in this case, in fact, is a Machlokes Tana'im (Kesuvos 19a),
and we rule that the borrower *does* have a Migu. Since Rav Amram did not
discuss that case, he presumably agrees with the ruling in Kesuvos that the
borrower is believed with a Migu, despite the fact that the lender is
holding a Shtar.
What, then, is the difference between the case of a borrower and the case of
a Shomer? If Rav Amram considers -- in the case of a Shomer -- the holding
of the Shtar to be powerful enough to override a Migu, then it should
override a Migu in the case of the borrower as well! (TOSFOS DH O Dilma)
(a) TOSFOS answers that the presence of a Shtar is a greater proof in the
case of a deposit than in the case of a loan. A person will sometimes repay
a loan without demanding the return of the Shtar, whereas a Shomer will
never return a deposit without demanding the return of the Shtar. Tosfos
gives several reasons for this difference. First, the borrower feels
grateful and beholden to the lender for the favor that the lender did by
lending him money, and thus he does not want to press him for the Shtar.
Second, the borrower is obligated to pay for the writing of the Shtar, since
the loan is to his benefit. If the Malveh paid for the writing of the Shtar
(thereby making the payment of the scribe's wage an additional loan (Ba'al
Peh) to the borrower), then he has the right to withhold the Shtar even
after the borrower pays back the loan until the borrower also pays for the
writing of the Shtar. Therefore, it is possible for the lender to still be
holding the Shtar, even though the loan is paid. These arguments do not
apply to a deposit (first, because the Nifkad -- the who receives the
deposit -- is doing the *Mafkid* a favor by watching it for him, and,
second, because the Nifkad does not pay for the Shtar that is written), and
that is why the presence of a Shtar in the hands of the Mafkid is a greater
proof that the deposit was not returned.
(b) The RAMBAN and RASHBA explain that the difference between a loan and a
deposit is not that the presence of a Shtar is stronger proof that the
deposit was not returned, but that the *Migu* of the Shomer is a weaker Migu
than the Migu of the borrower. They explain that in the case of a deposit,
the Shtar that the Mafkid presents is unquestionably valid. The only way the
Nifkad can exempt himself from paying the amount written in the Shtar is by
making a counter-claim that cannot be refuted by the Shtar (i.e. he must
claim that the deposit was lost through an Ones). As long as it is possible
to make such a claim, the Nifkad has a Migu to exempt himself from paying.
In contrast, in the case of a loan, when the lender presents a Shtar that is
not Mekuyam, the Shtar is not worth more than any other piece of paper until
the Shtar becomes Mekuyam. It is only because the borrower admits that the
Shtar was not forged that it becomes valid. Therefore, as long as the
borrower has the ability to claim that the Shtar is forged, he not only has
a Migu giving credence to his claim, but he also has a "Peh she'Asar" --
that is, the entire proof against the borrower is resting on the borrower's
own word (that the Shtar was not forged), and not on the Shtar. Since he is
the one who created the evidence against himself, he can also limit the
evidence against himself and say that although the Shtar is not forged, it
was repaid, and he is believed through a "Peh she'Asar" which is a stronger
argument than a Migu.
Tosfos, perhaps, does not accept this answer, because Tosfos holds that even
if the Shtar is not Mekuyam, it is considered a valid proof. The Shtar is
only invalidated when the borrower claims that it is forged. As long as he
makes no such claim, the Shtar is presumed to be valid (see TOSFOS in
Kesuvos 19a, DH Modeh). Therefore, the borrower's claim is a Migu (and not a
"Peh she'Asar"), just like the claim in the case of the Nifkad.
2) CLAIMING A DEPOSIT FROM "YESOMIM"
QUESTION: The Gemara records a dispute regarding a case in which a person
presents a Shtar to Yesomim attesting that he gave their father a sum of
money, half of which was a loan and half of which was a deposit. Dayanei
Golah rule that he may collect the entire amount. Dayanei Eretz Yisrael rule
that he may collect only the half that is a loan; he may not collect the
half that is a deposit, because Beis Din claims on behalf of the Yesomim
that perhaps the half that was a deposit was already returned. Had the
father made such a claim, he would have been believed with a Migu that he
could have said that the money was lost through an Ones (and he would have
been exempt). Beis Din may make on behalf of the Yesomim any claim that the
father could have used to exempt himself.
Why do Dayanei Golah not accept this argument? The Gemara explains that
Dayanei Golah hold that even the father would not have been believed to say
that he returned the deposit, as long as the Mafkid is holding a Shtar. The
presence of the Shtar overrides the Migu.
However, even if Dayanei Golah maintain that Beis Din does not claim for the
Yesomim that the deposit was returned, they should at least agree that Beis
Din may claim for the Yesomim than an Ones occurred to the deposit and
therefore they are exempt from returning it! The fact that the Mafkid has a
Shtar does not refute the claim that an Ones occurred to the deposit. Since
the father would have been believed to say that an Ones happened, the
Yesomim should be exempt because Beis Din should claim on their behalf that
an Ones happened! (TOSFOS DH Man d'Amar)
(a) The BA'AL HA'ME'OR cites those who suggest a simple answer. The Gemara
knew all along that had the father been exempt from returning the deposit,
he should have told his children before he died that he is exempt from
returning it. The father's silence is proof that he still owes money to the
Mafkid. However, the Gemara thought that the father would feel a
responsibility to tell his children that he is exempt only if an Ones
occurred to the deposit, since the Mafkid would not be aware of the Ones and
would certainly try to collect the deposit from the Nifkad's children. If
the father does not tell his children about the Ones, then they are bound to
lose money. If the father *returned* the deposit to the Mafkid, the Gemara
thought that the father would not feel a responsibility to tell his children
that the deposit was returned, since he would not suspect the Mafkid of
willfully collecting the deposit a second time. That is why the Gemara
thought that we will claim for the Yesomim only that their father returned
the deposit and did not tell them, and not that an Ones occurred to the
deposit and their father did not tell them about it.
(According to the RASHBAM (end of 70b), the silence of the father is a
factor in determining that the deposit was not repaid only when there is a
second element disproving the claim of the Yesomim, such as the presence of
a Shtar. According to his approach, the silence of the father can never
prove that no Ones occurred, since it is not corroborated by any additional
proof that no Ones occurred. The Ba'al ha'Me'or, on the other hand, was
apparently learning like Tosfos (in DH d'Im) and not like the Rashbam.
However, even according to the logic of Tosfos there, it is not clear that
the father would feel responsible to tell his children that an Ones occurred
to the deposit, since he assumes that they will make that claim on their
own. He will tell his children only that he paid back the deposit, since he
assumes that his children will think that it is not repaid if a Shtar is
presented to them.)
(b) TOSFOS (DH Man d'Amar) and the Ba'al ha'Me'or explain that we do not
make for Yesomim a claim that is unusual. It is not expected for a deposit
to be lost through an Ones, and therefore we do not claim that it was
Ne'enas. On the other hand, it is expected that a deposit be returned, and
therefore we claim that it was returned.
The RAMBAN (in Milchamos) questions this approach (and the previous
approach). If the Yesomim cannot claim that the object was Ne'enas, then how
can they claim that the object was returned? A person is believed to say
that a deposit was returned only with a Migu that he could have said that it
was Ne'enas, and the Yesomim do not have that Migu, since they are not
believed to say that it was Ne'enas!
Tosfos addresses this question and explains that it does not make a
difference whether or not the Yesomim themselves have a Migu. As long as the
*father* would have had a Migu with such a claim, we may present that claim
for the Yesomim; we may present for the Yesomim any normal claim that the
father could have presented.
It seems that the Ramban and Tosfos are arguing about how a claim can be
presented by Beis Din on behalf of Yesomim. According to Tosfos, Beis Din
says that "perhaps the father would have made this claim." According to the
Ramban, Beis Din says that "we shall treat the uncertain claim that the
Yesomim are making, saying that it might be true, as if they are saying that
that they *know* that it is true." Since, ultimately, the claim is coming
from the Yesomim, if they have no Migu themselves, then their uncertain
claim cannot be made into a claim of certainty.
The NETZIV points out that the Rashbam has another answer to the question
posed by the Ramban on Tosfos. According to the Rashbam (end of 70a), the
Nifkad is believed to say that the object was returned without having to
rely on a Migu. Rather, we say that perhaps the Nifkad did not reclaim the
Shtar upon payment, because he knew that the Mafkid would not be able to
collect a second time with the Shtar since he could always exempt himself by
saying Ne'enas (and swearing that the object was lost through an Ones).
(c) The RAMBAN himself (in Milchamos) does not accept the previous answers.
He explains that according to Dayanei Eretz Yisrael, the Yesomim are exempt
from returning the deposit because they can say either that they returned
it, *or* that it was Ne'enas. This is also the opinion of the RIF (Bava
Metzia 62a) and the RASHBA (Bava Basra 33a). Why, according to the Dayanei
Golah, do we not present, on behalf of the Yesomim, the claim that the
deposit was Ne'enas to exempt the Yesomim from paying? The Ramban answers
that the same Chazakah (the fact that the Mafkid is holding the Shtar) that
prevents the Yesomim from claiming that the deposit was returned also
prevents the Yesomim from claiming that an Ones occurred. Had an Ones
occurred during the lifetime of the father, the father certainly would have
told the Mafkid about the Ones immediately and reclaimed the Shtar. Since he
did not reclaim the Shtar before his death, it is clear that the deposit was
not lost through an Ones before his death, just as it is clear that the
deposit was not returned before his death.
(d) The RA'AVAD (cited by the Rashba and the Ba'al ha'Me'or) explains that
our Sugya is discussing *adult* Yesomim whose admission can obligate them to
pay. The Yesomim are presenting a claim of certainty ("Ta'anis Bari") that
their father told them that he returned the deposit. By claiming that the
deposit was returned, it is as if they are admitting that the object was
*not* lost through an Ones. Consequently, Beis Din cannot claim for them
that the object was Ne'enas.
The Gemara concludes that even if the father is believed to claim that he
returned the deposit, the Yesomim are not believed to say that their father
*told* them that he returned the deposit. Had he really returned the
deposit, the father would have told the children *in front of witnesses*
that it was returned (and not in private).
The Rashbam might be alluding to this answer (in DH Shtar Kis) when he
suggests, as an alternate explanation to the case of our Gemara, that the
Yesomim are presenting a Ta'anas Bari that the object was returned.