If one found bills of indebtedness, if they contain a lien on land [in insurance of payment of the debt], he does not return them (to the creditor), for beth-din exact payment from them (sold properties). [We fear "payment and plotting," i.e., it may be that it is a paid bill which fell from the lender and that his admitting: "I did not pay" is part of a plot between him and the creditor to extract payment from the sold properties which were bought from the debtor without security (against seizure), those properties to be divided between them.] If they do not contain a lien on land, he returns it (to the creditor), for (in that instance) beth-din do not exact payment from them. These are the words of R. Meir. The sages say: In both instances he does not return it, for beth-din exact payment from them. [They exact payment even where the bill does not contain a lien on land, for this (omission of the lien) is an error of the scribe, and we fear "payment and plotting." The halachah is in accordance with the sages, And it is only in a bill where a lien is not mentioned that the sages consider it an error of the scribe and collection is made from the bound property as if the lien were written therein. But if he stated explicitly in the bill that he does not take such a lien upon himself, the sages concede that he returns it (to the creditor), for in such an instance there is no apprehension of plotting.]
Bartenura on Mishnah Bava Metzia
אחריות נכסים – landed security (i.e., that the debtor’s landed property is pledged to the creditor) that he can collect from them.
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English Explanation of Mishnah Bava Metzia
If a man found debt documents he should not return them [to the creditor] if they recorded a lien on the [debtor’s] property, since the court would exact repayment from the property. But if they did not record a lien on the [debtor’s] property he may return them, since the court would not exact payment from the property, according to Rabbi Meir. But the Sages say: “In either case he should not return them, since [in either case] the court would exact payment from the property.” Generally, when a debtor pays back his debt he would take the document and tear it up, so that the creditor could not collect it again. If one found a debt document, one could therefore assume that it came from the creditor. However, according to our mishnah in most circumstances one should not return it to the creditor. Our mishnah is concerned concerned that the debtor and creditor colluded to defraud a third party. We will explain. If the debtor had written a lien on his property in the document the creditor could take from this property if the debtor defaulted. For example let us say that Reuven loaned Shimon 1000 dollars and Shimon put a lien over all his property. After the loan Shimon sold his property to Levi and then Shimon lost all of his money (probably in high tech stocks!). Reuven can now collect his debt from the property sold to Levi. Our mishnah is concerned that Reuven might make a deal with Shimon for Shimon to pay back, let’s say 500 dollars, and then to deny that he paid back anything and then Reuven would collect Shimon’s sold property from Levi. Lest such collusion had been committed one should not return debt documents that have written in them liens. According to Rabbi Meir, if no lien was written in the document there is nothing to fear and one may return it to the creditor. According to the Sages all loans done through documents imply a lien on the debtor’s property, whether or not this is written specifically in the document. Therefore no debt documents may be returned to the creditor.
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Bartenura on Mishnah Bava Metzia
לא יחזיר – for we are suspicious of collection and conspiracy to fraud and divide the profits. Lest it was a collected/paid off document and it fell from the borrower, and when he admits: “I did not pay,” there is a council of deception between them to seize the sold mortgaged property which cannot be resorted to (in the event of non-payment) and it will be divided between them.
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English Explanation of Mishnah Bava Metzia
Questions for Further Thought: • Mishnah six: According to Rabbi Meir, if one finds a debt document in which there is no lien, he may return it to the creditor. Why is he allowed to do so, and why would you think he should not?
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Bartenura on Mishnah Bava Metzia
בין כך ובין כך לא יחזיר – a document which cannot be resorted to (i.e., movable property) is mortgaged, and can be collected from, and surety (i.e., property which may be resorted to in the event of non-payment) is the error made by the scribe; and we are suspicious of collection and conspiracy to fraud, and the Halakha is according to the Sages. And specifically, with a document where property may be resorted to in the event of non-payment is not mentioned in it, the Sages said that it is an error made by the scribe, and we collect from mortgaged property as if the surety was written in it (i.e., the document). But if it was spelled out in the document that he (i.e., the borrower) did not want to accept upon himself surety [for non-payment], the Sages admit that he may return it, for now there is no fear for a conspiracy to fraud.
