Commentary for Bava Batra 10:11

גט פשוט – a plain document similar to ours which are not sewn or folded; and every document is called a Get.

A simple document has the signatures within (at the bottom of the; a sewn document has signatures behind [each fold].
If in a simple document its witnesses signed behind, or if in a sewn document its witnesses signed within, they are invalid. Rabbi Hanina ben Gamaliel says: “If in a sewn document its witnesses signed within, it is valid, since it can be made into a simple document.” Rabban Shimon ben Gamaliel says: “Everything should follow local custom.”
The tenth chapter of Bava Batra deals with laws concerning the proper writing and execution of documents.
An “simple” document is one in which the text is written at the top of the page and the witnesses sign on the bottom, similar to forms used today. A “sewn” document is one in which a few lines of text are written, and then the text is folded over and sewn at the fold and then signed on the back of the document. This process is repeated several times, with each fold being witnessed and sign on the back side of the document. Evidently this was a more difficult type of document to forge. The first opinion in the mishnah states that each type of document must be signed in its customary manner: a simple document on the front and a sewn document on the back.
Rabbi Hanina ben Gamaliel states that a sewn document with signatures on the front is nevertheless valid, and is in essence treated as if it was a simple document.
Rabban Shimon ben Gamaliel states that this law is dependent on the customs of the place. If the custom is to allow sewn documents to be signed on the inside as well as the outside then they are valid; if not they are invalid.

עדיו מתוכו – from the inside, similar to ours that we make.

מקושר מאחוריו – he (i.e., the scribe) writes one line or two and wraps them on the blank part and sews it. And one witnesses inscribes on the wrapping from the outside, and he (i.e., the scribe) goes back and writes two lines from the inside and wraps them on the blank part and the second witnesses inscribes on the wrapping from the outside. And similarly, the third witness. But the Rabbis established a folded document because of stringent Kohanim, because they would write a bill-of-divorcement suddenly to their wives and then regret it and they wouldn’t be able to restore them (i.e., because a Kohen cannot marry a divorced woman – see Leviticus 21:7), and the Rabbis ordained for them a folded bill-of-divorcement which is not easy to write quickly, lest in the midst of it, he is pacified. And just as they ordained/instituted a folded document for a Get, so they instituted for other documents that the Sages did not disagree with.

שניהם פסולין – for they did not act as the Sages ordained.

שיכול לעשותו פשוט – for if the seams would tear and the Get would open, it would be a plain document.

רשב"ג אומר הכל כמנההג המדינה – there is a dispute between Rabban Shimon ben Gamaliel and the Rabbis in a place where there is the practice of [both] a plain document and a folded document. If someone said to him: “Make for me a folded [document]” and he went and he made for him an ordinary document, or “Make for me an ordinary document” and he made for him a folded document, the first Tanna/teacher [of the Mishnah] holds that he is particular, and it is unfit. But Rabban Shimon ben Gamaliel holds that since with both (i.e., the plain document and folded document), it [depends upon] local custom, he is not strict and it is appropriate/fit, but the Halakha is according to the first Tanna/teacher [of the Mishnah] (see Talmud Bava Batra 165a).

פשוט שכתוב בו עד אחד – this is what he said: just as when a plain document in which only one witness is written in it is unfit from the Torah, so also a folded document in which only two witnesses are written in it is also unfit from the Torah.

Introduction Mishnah two mostly discusses discrepancies within a debt document.

אין לו אלא עשרים – and even though [it states] one-hundred zuzim, they are twenty-five Selaim. The hand of the owner of the document is at a disadvantage. And this is how we interpret for him a document: one hundred inferior Zuzim are not worth other than twenty Selaim.

This mishnah deals with documents which were not done properly or had the amount of the debt partially erased.

אין לי אלא מנה – twenty five Selaim, this is how we interpret it for a document: One hundred Zuzim which are thirty light and inferior Selaim, which are twenty-five from the good ones.

A simple document requires two witnesses; a sewn document requires three. If a simple document has only one witness, or a sewn document has only two, they are both invalid. A simple document must have two witnesses and a “sewn document” must have three. If they have fewer than the required amount the document is invalid.

ונמחקו – the number that is written afterwards is erased.

If it was written in a debt document: “100 zuz which are 20 sela (=80”, he (the can claim only 20 sela; if [it was written] “100 zuz which are 30 sela (=120” he (the can claim only 100 zuz. If in a debt document (an IOU) a number was incorrectly converted into another coin (i.e. dollars into cents), the debtor owes the creditor only the lower amount.

ומלמטה מאתים – when he doubles his words in the document.

[If there was written in a debt document] “Silver zuzim which are …”, and the rest was erased, [the creditor can claim] at least two zuzim. [If there was written in a debt document] “Silver selas which are …”, and the rest was erased, [the creditor can claim] at least two selas. [If there was written in a debt document] “Darics which are …”, and the rest was erased, [the creditor can claim] at least two darics. If a document said that the debtor owed a plural of a certain coin, but the number of the coins owed was erased the creditor can collect only two of the coin. Since the coin was written in plural (i.e. dollars), we know that the number was more than one. The minimum that it could have been is two, and this is what the creditor will be able to collect from the debtor.

הכל הולך אחר התחתון – as long as it will not be written last in the document.

If at the top was written a “maneh (100” and at the bottom “200 zuz”, or “200 zuz” at the top and “maneh” at the bottom, everything goes according to the bottom amount. If so, why is the figure written at the top of the document? So that, if a letter of the lower figure was erased, they can learn from the upper figure. If the number at the bottom of a debt document disagrees with the number at the top, the creditor can collect according to the bottom figure, whether it is higher or lower than the bottom figure. The assumption is that the writer of the document, the debtor (or a scribe on his behalf) changed his mind after writing the first amount, and his true intention was the second amount. The mishnah then asks, why do we customarily write the amount on the top and not just on the bottom? The answer is that the top amount will help if the bottom amount is erased. If, however both amounts are still clearly written, we follow the bottom one.

למה כותבין את העליון – for since at the end, the document repeats and states it again, and the responsibility of this money such-and-such I accepted upon myself (see Talmud Bava Batra 167b).

Questions for Further Thought:
• Sections two and three: What is the principle that explains why in this case the debtor owes the lower amount (section two) or only two of the coin (section three)?

כותב גט לאיש – and [the witnesses] inscribe [their names], and he will divorce here when he desires, and even though his wife is not with him, for she is divorced against her will.

Introduction Mishnah three discusses the consent needed from the involved parties in order to write a document.

ושובר לאשה – which she does for her husband regarding her Jewish marriage settlement/Ketubah, for it is a liability for him to her, and is a benefit for her husband, as we obtain a privilege in behalf of a person in his absence (see Tractate Eruvin, Chapter 7, Mishnah 11).

They may write out a bill of divorce for a man even if his wife is not with him, or a receipt (stating that the husband has paid the ketubah for the wife even if her husband is not with her, provided that he (the knows them. And the husband pays the (scribe’ fee. A scribe may write a get (a divorce document) for a husband or a receipt for the woman saying that she had received her ketubah payment even if the spouse is not there. The reason that he can write the get without the woman’s presence is that according to Jewish law a woman can be divorced against her will. Since she need not agree to the writing of the document, she need not be present when it is written. The reason that the scribe can write the receipt without the husband’s presence is that it is to the husband’s advantage that a receipt be written. Without the receipt the woman might claim that her husband had not paid her the ketubah money. In other words, in both of these cases there is no potential that the husband will fraud the wife by writing a get nor the woman fraud the husband by writing a document. The only requirement is that the scribe know the people for whom he is writing the document. Since the husband is the one divorcing his wife and in the case of the receipt the husband is the one benefiting, he pays the scribe’s fee.

ובלבד שיהא מכירן – that the scribe and the witnesses recognize/know the man and the woman [getting divorced]., whether with a Jewish bill of divorce or a receipt, for if they do not recognize them lest he write a Get/Jewish bill of divorce in the name of another married woman where his name is the same as the other man’s name, and she should take out that same Jewish bill of divorce where she is not divorced by it and similarly for the receipt.

They may write out a document for the debtor even though the creditor is not with him, but they may not write out a document for the creditor unless the debtor is with him. And the debtor pays the (scribe’ fee. A scribe may write a loan document while not in the presence of the creditor but it must be done in the presence of the debtor. Since the debtor is the one who through the document becomes liable to pay back the creditor, the scribe must know that the debtor agreed to the writing of the document. The creation of the document is beneficial to the creditor, for through it he will receive the money in return. Therefore it need not be written in his presence. The debtor pays the scribe’s fee.

והלוה נותן שכר – even if it is giving a person goods to trade with another (usually two shares of the profit going to the investor and one to the trader) where half of it is a loan and half of it is a deposit. Nevertheless, the person receiving the business pays the fee to the scribe (see Talmud Bava Batra 168a).

They may write out a deed of sale for the seller although the buyer is not with him, but they may not write it out for the buyer unless the seller is with him. And the buyer pays the (scribe’ fee. A scribe may write a sale document while not in the presence of the buyer but it must be done in the presence of the seller. Since the document will cause the seller to lose his property, the scribe must know that it is being written with his consent. The buyer, who gains from the sale, need not be present. The buyer pays the scribe’s fee.

Questions for Further Thought:
• Sections two and three: Why do you think the debtor and not the creditor pays the scribe’s fee? Remember that according to Jewish law it is forbidden to lend money to other Jews with interest. Why does the buyer pay the fee?Can you extract general principles from these two mishnayoth for when the document must be written in a person’s presence?

שטרי אריסות – the person who goes down to the land to work it and to guard it for one-half, one-third or one-fourth [of the profit].

Introduction Mishnah four continues to discuss the consent needed from the involved parties in order to write a document.

קבלנות – for such-and-such Khorim per year, whether it produced or it didn’t produce.

They may not write documents of betrothal or marriage except with the consent of both parties. And the bridegroom pays the (scribe’ fee. Since it is necessary for both the bridegroom and the groom to consent to the marriage of the other, the scribe may not write the document without both of their consent. Since the bridegroom is gaining a wife, he writes the document.

שטרי בירורין – this one (i.e. litigant) chooses one judge who will judge for him and that one (i.e. litigant) chooses for himself one [judge] and they write in a document: “so-and-so chose judge so-and-so and his claims are this and that,” in order that they don’t retract and raise a complaint.

They may not write documents of tenancy and sharecropping except with the consent of both parties. And the tenant pays the (scribe’ fee. Tenancy is a lease in which the tenant agrees to give the owner of the land a fixed portion of the crop. Sharecropping is a lease in which the sharecropper agrees to give a fixed amount regardless of what the crop yields. In both of the these types of agreements between landowners and those who wish to work the land the document must be written in front of them both. Since the landowner is giving over a piece of his land and the tenant is promising to give the landowner something in return the scribe must ensure that the deal is agreed to by both parties. The scribe’s fee is split.

כותבים שנים – to each one of the litigants a separate document in which their claims are arranged in it, but the Halakha is not according to Rabban Shimon ben Gamaliel. But rather, they write one document containing the claims of each of the litigants and that so-and-so (i.e., the litigant) chose so-and-so as a judge that would adjudicate for him and so-and-so (i.e., the other litigant) chosen so-and-so as a judge that would adjudicate for him.

They may not write documents of arbitration or any document drawn up before a court except with the consent of both parties. And both parties pay the (scribe’ fee. Rabban Shimon ben Gamaliel says: “Two documents are written for the two parties, one copy for each.” Arbitration documents are those that state who are the judges from whom the litigants agreed to accept binding judgement. In the time of the Mishnah litigants jointly chose judges (see Sanhedrin 3:1), who were not necessarily fixed employees of the state. The other types of court documents referred to in this mishnah would include such documents as those which allowed the creditor to collect the collateral from the debtor in case of default on a loan or a document that states that a creditor collected such collateral (possibly from a third party). These documents must be written in the presence of both parties, and both parties share the scribe’s fee.

Questions for Further Thought:
• Can you extract general principles from this mishnah and the previous one for when the document must be written in a person’s presence?

והשליש את שטרו – the lender and the borrower transferred the document to the hand of a third-party for it was a trouble for them to write a receipt and they relied upon the third party.

Introduction Mishnah five deals with laws concerning paying back debts.

ר' יוסי אומר יתן – for he holds that Asmakhta (i.e., a promise to submit to a forfeiture of pledged property – or equivalent – without having received a sufficient consideration) is a valid legal transfer of property (see Talmud Bava Batra 168a). A person who promises t his fellow something on the condition that he will do something for him in the future, and he relies upon his intention at the time of the condition that he would be able to fulfill it. But when the time comes, he is not able to fulfill it. This is called Asmakhta. But with regard to the Jewish legal decision, Asmakhta does not acquire/gives no title, unless he acquired it from his hand in an important Jewish court. But he caused to take hold of his merits in the same Jewish court where he transferred his documents and his proofs, and he said: “if I don’t bring it from now until thirty days, my benefits will be voided. But my teachers/Rabbis explain that every Jewish court that are specialists and know the laws of Asmakhta are called an important Jewish court in this matter. But Maimonides says that there is no important Jewish court other than a Jewish court ordained in the Land of Israel.

If a man had paid part of his debt and gave the debt document to a third party, and the debtor said to him, “If I have not paid you back by such and such a day, give him (the back the debt document” and the time came and he had not paid, Rabbi Yose says: “He should give it to him.” Rabbi Judah says: “He should not give it to him.” When a person borrows from another person the creditor keeps possession of the debt document, in order to use it later to collect his debt. If the debtor were to pay back half of the loan, the creditor would not be able to give back the debt document, lest he be unable to collect the second half of the loan. On the other hand, the debtor would not want the creditor to keep the document, lest he use it to collect the entire loan, even though half was already paid back. One solution to such a problem was to give the debt document to a third person and for the debtor to promise to pay back the remainder within a certain time or else the third party was to return it to the creditor. According to Rabbi Yose in such a case if the time elapsed the third party should give the debt document to the creditor. According to Rabbi Judah he should not. Since the debtor did not really intend to allow the creditor to collect more than his debt by using the debt document after it had been partially paid, the third party is not allowed to return it to the creditor.

מי שנמחק שטרו – and there were witnesses who saw when it was blotted out on its own, or smudged by water.

Introduction Mishnah six discusses a loan document that has been erased and one that has been partially repaid.

מעמיד עליו עדים – that know from when it was written and what was written in it, and they make for him an attestation before a Jewish court and they write for him everything that had been written in that document.

If a man’s debt document was erased, he must have witnesses testify with regards to the loan, and come before the court to make this attestation: “So and so, the son of so and so, his debt document was erased on such and such a day, and so and so and so and so are his witnesses.” If a creditor’s debt document was damaged, for instance through water, he needs to bring to the court witnesses to testify to the original loan. The court will then draw up a new document which he will subsequently be able to use to recover his loan.

יחליף – he should tear the document and write another according to the remaining balance.

If a man had paid part of his debt, Rabbi Judah says: “He should exchange the debt document for a new one.” Rabbi Yose says: “He should write a receipt.” Rabbi Judah said: “It turns out that this one (the will have to guard his receipt from mice.” Rabbi Yose said to him: “That’s good for him, as long as the rights of the other (the have not been damaged. We mentioned in the previous mishnah the problem created when a man pays back part of his loan. In this mishnah two other solutions are offered. Rabbi Judah says that a new loan document should be written. Rabbi Yose says that the creditor should write a receipt. Rabbi Judah tells Rabbi Yose that the problem with writing a receipt is that the debtor will have to guard it from being eaten by mice. If the debtor loses the receipt the creditor will be able to fully collect the debt. (Normally when a person pays back a debt the document would be torn up so that it would not be used again.) Rabbi Yose says that his solution (writing a receipt) is better because writing a new document will damage the rights of the creditor. The rights referred to here are the lien that exists on the creditors property. The lien is effective from the day that is written on the document. In other words any property owned by the debtor on the day mentioned in the debt document has on it a lien and therefore the creditor could collect that property should the debtor default. If between the day on which the original document was written and the day of the rewriting, the debtor has lost property, a later date on the document will damage the creditor’s ability to collect on his loan.

נמצא זה – the borrower needs to guard his receipt from the mice, for if he loses it, the creditor will collect all of his liability.

Questions for Further Thought:
• Is there any consistency in the opinions of Rabbi Yose and Rabbi Judah as they appear in this mishnah and in the previous one?
• Why is Rabbi Judah concerned that a debtor will lose his receipt but evidently not concerned that a creditor will lose the debt document?

אמר רבי יוסי וכן יפה לו – to the creditor, for the borrower must guard his receipt and hurry to pay him back, and no harm will come to the creditor to write another document that had an advanced time for the liability [to be paid off] and that he returns now and he would not be able to seize the sold property unlawfully other than from the time of the second document. And the Halakha is according to Rabbi Yosi that we write a receipt.

קח לך עבדים – that they should warm up for you the bathhouse that it is like what our father left us, so it shall be forever, and even though that we have in the first chapter (Tractate Bava Batra, Chapter 1, Mishnayot 1 and 6), concerning something where there isn’t the law of division. One can say, “I will make a wall or I will divide it,” meaning to say, “sell me your part or I will sell [to you] my part. But it is different here because the poor person cannot say, “I will divide it” because he has nothing with which to buy.”

Introduction Mishnah seven deals with various subjects such as brothers who share an inheritance and the recognition of documents in a case where two people in a city have the same. The final section of the mishnah deals with loan guarantors.

אינן יכולין להוציא שטר חוב זה על זה – because each one can claim that this document that is in your hands, I returned to you when I paid you repaid me the monies that I lent to you.

If there were two brothers, one poor and one rich, and their father left them a bath house or an olive press, if the father had made them for hire, the profit is split equally. But if he made them for his own use alone, the rich brother may say to the poor brother, “Buy for yourself slaves and they can wash in the bath house” or “Buy for yourself olives and prepare them in the olive press.” A bath house and an olive press could either be owned for personal usage or as a rental. If two sons, one rich and one poor, inherited either a bath house or an olive press, the poor son will want to rent them out to others and collect the money and the rich son, who doesn’t need the money and may be able to make personal use of a bath house and an olive press, may want to use them for personal usage. According to the mishnah, the determining factor is what the father had done with them. If he had used them for rent, then the poor son can force the rich son to continue to use them in such a manner. If they had been used for personal needs the rich son can say to the poor son, use them as much as you like, buy slaves to bathe in the bath house or olives to press, but you may not rent them out to others.

ולא אחד יכול להוציא שטר חוב עליהם – because each one can supersede him regarding his fellow.

If there were two in the same town, and one’s name was Joseph the son of Shimon and other’s name was Joseph the son of Shimon, neither can bring forth a debt document on the other, and another person cannot bring forth a debt document against them. And if some person finds amongst his documents a document that states, “The [debt] document of Joseph ben Shimon is paid”, both of their [debt] documents are paid. What should they do? They should write their names to the third generation. And if the names are the same through the third generation, they should give themselves a sign. And if their signs are the same, they should write “Cohen”. If two people in a city have the same name, it will problematic for them to collect debts from each other and for others to collect debts against them. Neither of them will be able to claim against the other for the other could claim that he is actually the creditor and not the debtor. Nor will others be able to claim from them for each of them may claim that the other Joseph ben Shimon is the debtor. If a third party who had loaned them both money should find amongst his documents a document that says that Joseph ben Shimon paid back his debt, both of their debts are cancelled. The way to remedy this problem is to write a third generation with their names, Joseph the son of Shimon the son of Jacob, or a sign that would designate the person’s profession, i.e. a saw for a carpenter, or a fish for a fisherman, or to write Cohen, Levi, depending on the person’s status.

ישלשו – he will write the name of his father’s father.

If a man said to his son, “One of my debt documents is paid and I do not know which one”, then all are deemed to be paid. If two documents were found [amongst his documents] written to the same debtor, then the large one is paid and the small one is not paid. If a dying person told his son that one of the debt documents that he held (containing what other people owe him), was paid off but he didn’t know which one, the son will not be able to collect any of the debts. If amongst his documents were two different loans to the same person, we can be sure that only one of them is paid off. In such a case the son may collect on the smaller loan.

ואם היו משולשים – that their names and the names of their fathers and the names of their father’s fathers are the same.

If a man lent money to his fellow on a guarantor’s security, he may not exact payment from the guarantor. But if he had said, “On the condition that I may exact payment from whom I wish”, then he may exact payment from the guarantor. Rabban Shimon ben Gamaliel says: “If the borrower had property, in neither case can he exact payment from the guarantor.” Moreover, Rabban Shimon ben Gamaliel used to say: “If a man was a guarantor for a woman’s ketubah and her husband divorced her, the husband must vow to derive no further benefit from her, lest he make a conspiracy against the property of the guarantor and take his wife back again.” If a debtor used a guarantor to secure his loan the creditor may not exact payment from the guarantor, unless, of course, the debtor did not have property with which to pay back the loan. If, however, the creditor had stated at the outset that he was going to exact payment from whomever he wishes, then he may exact payment from the guarantor even if the debtor had property. Rabban Shimon ben Gamaliel holds that in any case, if the debtor had property, the creditor cannot collect from the guarantor. Rabban Shimon ben Gamaliel holds a similar opinion with regards to a woman’s ketubah. If a woman had a guarantor on her ketubah, in other words someone guaranteed to pay her ketubah should her husband not be able to, and then the husband divorced her and the woman collected from the guarantor, the husband must swear to never receive benefit from her again. The fear is that the husband will make a deal with his wife, that he will divorce, she will collect her ketubah from the guarantor and then be remarried to him, and give him the money that she collected from the guarantor.

יכתבו סימן – a certain [sign] that this is red-spotted or long or short and if their signs are the same, they should write, “Kohen,” if one is a Kohen and the other is an Israelite.

Questions for Further Thought:
• Section three: Why can he only collect on the smaller loan? What is the halachic principle governing this law and indeed most of the laws contained in this mishnah?
• Section four: What is similar about Rabban Shimon ben Gamaliel’s two statements in this section?

נמצא – to one borrower there two documents from two loans that he borrowed from him.

הקטן אינו פרוע – that one document among his documents is spoken of and not two.

לא יפרע מן הערב – first, until the borrower is brought to court, and the Jewish court makes him liable [to pay it off]; and if he doesn’t have wherewith to pay, then he can collect from the guarantor.

רבן שמעון בן גמליאל אומר אם יש נכסים ללוה – he should not collect payment from the guarantor, not from the fact that the first Tanna/teacher holds that even if the borrower has property, he should collect payment from the guarantor, but rather, because our Mishnah is deficient, and this is how it should be taught: A person who loans his fellow through a guarantor should not collect payment from the guarantor, but if he said, “on condition that I can collect payment from whomever I desire,” he can collect payment from the guarantor. When is this said? When the borrower lacks property, but if the borrower has property, he should collect payment from the guarantor, or from a person who assumes the other man’s obligations unconditionally (see Talmud Bava Batra 173b and 174a), even though the borrower has property, he should collect from the person who assumes the other man’s obligations unconditionally. Rabban Shimon ben Gamaliel says that both the guarantor and the man who assumes the other person’s obligations unconditionally are the same: if the borrower has property, he (i.e., the creditor) may not collect from them. But the Halakha is not according to Rabban Shimon ben Gamaliel. The guarantor is the person who says [to the creditor]: “Give him and I will be the guarantor [of your repayment].” The קבלן /the person who assumes the other person’s obligations unconditionally who says: “Give him, and I will give it to you.”

הערב לאשה בכתובתה – and the husband lacks property, and the guarantor needs to pay off her Ketubah/Jewish marriage contract [in event of the husband’s death or a divorce], he should not pay off the Ketubah until the husband first makes her take a vow against deriving any benefit with the knowledge/consent of the public a vow that cannot be revoked, that he cannot restore her [as his wife], for we suspect lest it is his intention to restore her [as his wife] and to consume her Jewish marriage contract settlement after she has collected her settlement from the guarantor and regarding law, the guarantor of a Ketubah is not mortgaged and he is not liable to pay it off [for the husband] and even if the husband lacks property. What is the reason that he has performed a Mitzvah and nothing is missing from it? But if he is mortgaged as a guarantor for the Ketubah of his son, a father regarding his son is himself personally mortgaged, but a קבלן/someone who unconditionally assumes the other man’s obligations when the Jewish marriage contract is mortgaged, the wife can claim the Ketubah from him (i.e., the קבלן ) at first, and even if the husband has property, but the husband forces her to take an vow against benefit first with the consent of the public.

המלוה את חבירו בשטר – even though it is not written [in the loan document] property which is pledged from which debts may eventually be collected (i.e., landed property), collects from mortgaged property for we hold that surety (i.e., mortgaged property) is a scribal error, if it had not been written in the [loan] document. It is considered as if it was written.

Introduction Mishnah eight, the final mishnah of Bava Batra, deals with a creditor’s ability to recover his debt if the debtor is not able to pay back the loan himself.

הוציא עליו כתב ידו שהוא חייב לו – and there is no other testimony there.

If a man lent his fellow money by using a document, he may recover the debt from mortgaged property. But if he had lent only before witnesses (and not through a, he may recover the debt only from unmortgaged property. If a man used a document to lend money he may recover the debt even from mortgaged property. This means that if after the time of the loan the debtor sold some of his property and then was not able to repay the loan the creditor can collect from that sold property. If, however, the loan was only done orally, with witnesses to testify, then he may only recover from unmortgaged property, namely property still in the hands of the debtor.

גובה מנכסים בני חורין – and not mortgaged [property], for since he has no witnesses, it has no voice, and they did not know about him that he had property in order that he had to be careful about.

If the [creditor] brought forth [a loan document] upon which appeared his (the debtor’ signature as evidence that he was indebted to him, the creditor may recover the debt only from unmortgaged property. If the creditor had a debt document written or signed by the debtor himself, but not signed by witnesses, he may collect from unmortgaged property but not from mortgaged property.

אחר חיתום שטרות – after the witnesses signed the document, [the guarantor wrote]: “I so-and-so the son of so-and-so is the guarantor.”

If a man signed as a guarantor after the signatures of witnesses, the creditor may recover the debt only from [the guarantor’s] unmortgaged property. Such a case came before Rabbi Yishmael and he said, “He may recover only from unmortgaged property”. Ben Nanos said to him: “He may recover the debt neither from mortgaged nor unmortgaged property.” He said to him: “Why?” He answered, “If a man seized a debtor by the throat in the street and his fellow found him and said ‘Leave him alone (and I will pay’, he is not liable, since not through trust in him did the creditor lend the debtor money.” Rather which type of guarantor is liable? [If a man said], “Lend him money and I will pay thee”, he is liable, for he lent him the money through his trust in the guarantor. According to Rabbi Yishmael if the witnesses signed on a document and the guarantor signed afterwards the creditor may collect only from the guarantor’s unmortgaged property but not from his mortgaged property. Ben Nanos disagrees with Rabbi Yishmael and states that in such a case the creditor cannot collect from any of the guarantor’s property. The reason is that the creditor loaned the money not based on his trust of the guarantor. Ben Nanos makes an analogy to a creditor who attacks a debtor and a third party promises to pay back the debt. In such a case the creditor does not actually believe that the guarantor will pay back the debt and therefore the guarantor is not obligated to repay the loan. According to Ben Nanos only if the guarantor guarantees the loan before it is executed and the creditor makes the loan from the outset knowing who the guarantor is can the creditor collect from the guarantor.

גובה מן הערב – from free standing properties alone for since witnesses did not inscribe on the surety/guarantor, it is like a loan by mouth.

And Rabbi Yishmael said, “He who wants to be wise let him occupy himself with cases dealing with monetary matters, for there is no greater branch of Torah than this; for they are like a welling fountain; and he who wishes to occupy himself with laws concerning monetary matters, let him serve [as a pupil] of Shimon ben Nanos. Rabbi Yishmael finishes tractate Bava Batra, which is indeed the last part of a much longer tractate called Nezikin that has been broken into three parts, Bava Kamma, Bava Metzia and Bava Batra, with a message as to the importance of these laws. A person who wishes to sharpen his intelligence, should study monetary laws, for the logic and methods of reasoning that stand behind these laws is the greatest in all of Torah study. And in a final note of concession to Ben Nanos, with whom Rabbi Yishmael has just disagreed, Rabbi Yishmael says that the greatest teacher of the laws concerning money is Shimon ben Nanos himself. Rabbi Yishmael teaches us two important lessons: 1) Learning Torah does not only teach us how to live our lives, but through its study we can become more intelligent people. 2) He teaches us the humility to have the utmost respect even for those with whom we might disagree.

אמר ליה בן ננס וכו' – for he holds that every guarantor after the giving of the money is not a guarantor for it wasn’t on the faithfulness of the guarantor and the trust in him that the creditor made the loan to him (i.e., the borrower), and even though Rabbi Yishmael extolled Ben Nanos, the Halakha is according to Rabbi Yishmael for the guarantor after the giving of the money requires an acquisition, and if not, it is not mortgaged, for before the giving of the money, there is no need for an acquisition.

Questions for Further Thought:
• Section one: Why do you think that a creditor has greater to power to collect when the loan is executed through a document?Congratulations! We have finished Bava Batra.It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives.For those of you who have learned with us the entire tractate, a hearty Yasher Koach (congratulations). You have accomplished a great deal and you should be proud of yourselves. Indeed we have now finished together three tractates of Mishnah. Of course, we have much more to learn. We will begin Sanhedrin tomorrow!