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Kesuvos 16
1) REBBI YEHOSHUA'S "MIGU"
OPINIONS: The Mishnah states that Rebbi Yehoshua agrees that a Migu may be
used to support a claim in court in a case where the present owner of a
field says to the original owner's son, "This field belonged to your father,
and I purchased it from him" (he is believed because he could have remained
silent and never said that the field belonged to the other man's father).
The Gemara explains the difference between this case and the cases in the
other Mishnayos (12b, 13a) in which Rebbi Yehoshua says that a Migu *cannot*
be used to support a person's claim in court (12b and 13a). The Gemara says
that the difference between the cases is that in the case in the Mishnah
here, "there is no slaughtered ox in front of you," while in the cases in
which Rebbi Yehoshua does not agree that Migu works, "there is a slaughtered
ox in front of you." What is the meaning of the allegory of a slaughtered
ox, and how does it reflect a logical distinction between the different
cases?
(a) TOSFOS (DH Hasam; 15b, DH u'Modeh; 18a, DH Iy) and other Rishonim give
the most straightforward approach. Tosfos points out that there are two
cases in which Rebbi Yehoshua does not apply a Migu. One case (in the
Mishnah on 12b) is where the husband finds his newly married wife to be a
Be'ulah, and she claims that she was not a Be'ulah at the time of the Erusin
but that she was raped after the Erusin. The woman is not believed even
though she could have said that she was a Mukas Etz (which would have been a
better claim than saying that she was raped, because with the claim of
"Mukas Etz" she would have been permitted to marry a Kohen). The second case
is that of "Nistarah" (in the Mishnah on 13a) in which a woman secluded
herself with an unidentified man and, when questioned, she said that
although she had relations with the man he was Kasher and was not the type
of person who would make her Pesulah to Kohanim. Rebbi Yehoshua says that
she is not believed and we assume that she is Pesulah to Kohanim even though
she has a Migu; she could have made a better claim and said that she did not
have relations at all with the man. Had she made that claim, she would have
benefited by retaining her status of a Besulah and getting 200 Zuz for her
Kesuvah.
In both of those cases, even if she had claimed the better claim (which
would have benefited her in some way more than her present claim), she would
*not* have prevailed in court! In the case where the woman claims, "I was
raped after the Erusin," if she would have said that she was a Mukas Etz she
would still have not been believed according to Rebbi Yehoshua, because the
only advantage of that claim is that it is "Bari" and her husband's claim is
"Shema" (and, also, that she has a Chezkas ha'Guf to say that it happened
after the Erusin). Rebbi Yehoshua, however, maintains that "Bari v'Shema" is
not a reason to prevail in court (12b; Tosfos 13a, DH Rav Asi)!
Similarly, in the case of Nistarah, had the woman said that she did not have
relations with the man, she would not have been believed, because Rebbi
Yehoshua maintains, "Ein Apotropos l'Arayos" -- it is assumed that she had
relations because no one watches to make sure that Z'nus does not occur
(13b; RAMBAN here).
Rebbi Yehoshua rules that in these two cases, since the Migu is not a true
Migu (since the woman would not have actually been believed with the claim
of the Migu), we must suspect that the woman might be intentionally lying in
order to win her case. She knows that had she said the better claim she
would have lost the case, and therefore she says the weaker claim in order
to win the case. This is unlike any Migu anywhere else in the Gemara
(Ramban). In the case of every other Migu, there is nothing that the person
gains with the weaker claim which he would not have gained with the stronger
claim. It is only this type of Migu that Rebbi Yehoshua does not accept.
This type of Migu is referred to as, "Shor Shachut Lefanecha," a
"slaughtered ox in front of you," meaning that there was an act that was
done which cannot be denied (and thus no claim will help the woman prevail
in court).
In the case where the woman claims, "I was raped after the Erusin," the fact
that she is a Be'ulah cannot be denied (it is like a slaughtered ox that
cannot be revived). She has no way of winning her case by claiming that she
is a Besulah; no claim she makes could win the case for her. Since it is
known that she is a Be'ulah, there is no other claim that could win the case
for her, and therefore it is not a real Migu.
Similarly, in the case of Nistarah, no claim that she could make could undo
the fact that she secluded herself. Her seclusion is an undeniable fact.
Therefore, she has no real Migu to deny that fact and to help her be
believed in court.
In contrast, in the case of the Mishnah here in which the present owner of a
field says to the son of the original owner, "This field belonged to your
father, and I purchased it from him," the present owner could deny that the
field ever belonged to the other person's father. By denying it, he
certainly would win the case and be permitted to keep the field. Therefore,
he has a full-fledged Migu when he says that he bought it. This is what is
meant by "Ein Shor Shachut Lefanecha" -- "there is no slaughtered ox in
front of you"; that is, there is no obvious fact here that cannot be denied.
(b) RASHI takes another approach to the Sugya (16a, DH she'ha'Peh she'Asar
and DH Hacha; 17b, DH v'Lisni;, 18a, DH v'Nisni and DH Aliba d'Man). He
explains that Rebbi Yehoshua accepts only a certain type of Migu -- a "Migu
d'Iy Ba'i Shasik." Such a Migu exists when there is no claim being made
against the person, but it is the person himself who initiates the claim
against himself, while at the same time he dismisses it. In the case of the
Mishnah here, nobody challenged the owner of the field, saying that it
belongs to someone else. Rather, the owner himself informed the son of the
previous owner that the field once belonged to his father and that he bought
it from his father.
This is what the Gemara means when it says that in this case "there is no
slaughtered ox" -- there is no claimant, there is nothing in front of Beis
Din to provoke a response from the person who has the Migu. (Tosfos learns
that the "slaughtered ox" represents a claim with a proof, and "no
slaughtered ox" refers to a claim without a proof. In contrast, Rashi learns
that the "slaughtered ox" represents a claim without a proof, and "no
slaughtered ox" refers to when there is no claim at all.)
According to Rashi, it appears that whenever a claim is presented in court,
Rebbi Yehoshua maintains that a Migu can *never* cause a claim to win.
There are difficulties with Rashi's explanation.
1. Tosfos disproves Rashi's explanation from the Mishnah which says that "if
there are witnesses that the field once belonged to the father," the present
owner cannot claim, without proof, that he bought it from the father. If, as
Rashi says, Rebbi Yehoshua maintains that a claim alone suffices to refute
the Migu, then why does the Mishnah need to say that if the son of the
original owner of the field *brings witnesses* he is believed? He would be
believed even without witnesses, as long as he comes with an independant
claim!
Rashi might understand that this part of the Mishnah is not expressing
solely the view of Rebbi Yehoshua. Rather, it is expressing a Halachah with
which everyone agrees, even Raban Gamliel. Raban Gamliel, however, agrees
that the original owner of the land is believed *only* when he has witnesses
and not when he has merely a claim that the land belongs to him. (See also
SHITAH MEKUBETZES, 15b, DH v'Li Divrei Rashi.)
2. The PNEI YEHOSHUA records another proof for the explanation of Tosfos
from the Gemara earlier. The Gemara (13a) says that according to Rav Asi,
Rebbi Yehoshua maintains that the woman *is* believed in a case of Nistarah,
when she secluded herself with a man and she claims that he was Kasher,
because she has a Migu that she could have said that she did not have
relations at all. (According to Rav Asi, Rebbi Yehoshua does not maintain
"Ein Apotropos l'Arayos," and that is why she would be believed had she
claimed that she did not have relations.) According to Rav Asi, at least, it
is clear that Rebbi Yehoshua *does* maintain that a Migu works to support
one's claim even though there is a claim against her (there is a
"slaughtered ox" in that case -- there is something present that provokes
her response, and that is the fact that she secluded herself with a man). It
must be, as Tosfos says, that Rebbi Yehoshua *does* accept a Migu whenever
it is a true Migu and is not merely a better claim.
To uphold Rashi's explanation, the Pnei Yehoshua answers that perhaps Rashi
would concede that according to Rav Asi, Rebbi Yehoshua accepts a Migu.
Another answer for Rashi may be that even Rashi agrees that Rebbi Yehoshua
accepts a Migu for a woman who has a "Chezkas Heter" to permit her to marry
a Kohen. Since she is not taking anything away from anyone and she is not
making a claim that counters the Chazakah, she is believed. However, to take
away money from another person, which involves overriding a Chazakah (i.e.
that the other person, who is presently in possession of the money, is the
owner), a Migu will not work.
In summary, according to Rashi it seems that Rebbi Yehoshua does not accept
any of the Migus commonly found throughout the Gemara. (The RAMBAN rejects
such an approach. He suggests an answer (which he admits is a very forced
answer) to explain that even according to Rashi, Rebbi Yehoshua accepts an
ordinary Migu, and only in this case does he not accept the Migu.)
Why does Rashi not accept the straightforward explanation of Tosfos? Rashi
gives this explanation because of his reading of the Sugya later (18a; see
Rashi there). Rashi infers from the Gemara later that Rebbi Yehoshua does
not maintain that any normal Migu works. However, the question remains: how
does the Gemara there know that this is Rebbi Yehoshua's opinion?
Apparently, the Gemara understands that this is the simplest understanding
of the wording of Rebbi Yehoshua. In the Mishnah, Rebbi Yehoshua presents
the case as, "One who says this field belonged to your father...," where the
present owner initiates the question (and gives the answer) about the
possession of the field. The Mishnah clearly implies that the Migu is
accepted only when the person who has the Migu is the one who informs us
that the field once belonged to the other's father. The simple reading of
the Mishnah seems to support Rashi's explanation.
(c) The BA'AL HA'ME'OR has the opposite Girsa in the Gemara. In the case of
the Mishnah here, there is a "slaughtered ox" in front of him and that is
why he is believed. The Ba'al ha'Me'or explains that the "slaughtered ox"
simply means that the "Chezkas Mamon" that one person used to have on the
property has come to an end, and now the property is in the hands of someone
else -- the person who says that he bought it. The Halachah states that in
the case of a slaughtered ox, once a proper Shechitah has been performed it
no longer has a "Chezkas Isur" (a Chazakah that it was forbidden either
because of "Ever Min ha'Chai" or because it was lacking Shechitah). In
contrast, the case where the woman claims, "I was raped after the Erusin,"
is compared to an ox that is not slaughtered; just as the ox is still in its
original state of a "Chezkas Isur" (until we prove that it was slaughtered
properly), the husband, too, still has a Chazakah on the money of the
Kesuvah.
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Kesuvos 17
1) MAKING THE CHASAN AND KALAH REJOICE
QUESTION: The Gemara records a dispute between Beis Shamai and Beis Hillel
about how we are to praise the Kalah when we dance before her ("Keitzad
Merakdim Lifnei ha'Kalah"). The simple understanding of the Gemara is that
the Mitzvah is to make the Kalah happy. However, the Gemara in Berachos (6b)
says that anyone who benefits from the Se'udah of a Chasan but does not
increase *his* joy is considered to have transgressed the five "Kolos" (see
there). The Gemara in Berachos implies that the Mitzvah is to make the
Chasan rejoice, and not the Kalah.
What is the Mitzvah -- to make the Kalah rejoice or to make the Chasan
rejoice? (KOVETZ SHI'URIM #46)
ANSWERS:
(a) RAV ELCHANAN WASSERMAN, Hy'd, in Kovetz Shi'urim explains that the
Mitzvah is to make the *Chasan* rejoice, as the Gemara in Berachos says.
This is logical, he explains, because the Mitzvah to get married is part of
the fulfillment of the Mitzvah of Piryah v'Rivyah, an obligation of the man
and not of the woman (Yevamos 61a). That might be why Rashi (DH Keitzad)
explains that the Gemara here is discussing, "Mah Omrim Lefaneha" -- "what
do we *say* before the Kalah," implying that the objective is not to make
the Kalah rejoice, but rather to say praises of her in front of her so that
the Chasan will hear and will rejoice in his wife.
The DIVREI SHALOM (5:22) finds support for this explanation in the words of
Rashi in Berachos (6b) where the Gemara says that the reward received for
attending a wedding is "the words [that are spoken]." Rashi there explains
that this refers to "the words that we say to make the Chasan rejoice." When
we praise the Kalah, we cause the Chasan to rejoice. This is also how the
MENORAS HA'ME'OR (3:8:1:2) understands the Gemara, and this is the
implication of the TESHUVOS BE'ER SHEVA (#50).
The Divrei Shalom brings further support from Pirkei d'Rebbi Eliezer (ch.
16), which states that a Chasan is similar to a king: just as a king is
praised by all, so, too, a Chasan is praised by all. Moreover, it says there
(ch. 17) that Izevel was rewarded for her act of walking in front of every
Chasan who passed by and clapping her hands and expressing praise. This
clearly shows that the Mitzvah is to make the Chasan rejoice.
(b) The TUR (EH 65), however, writes that "it is a Mitzvah to make the
Chasan *and* the Kalah rejoice." When the Tur quotes the Midrash about
Izevel, he writes that she used to clap before the Chasan *and* the Kalah.
The RADAL (Rav David Luriah) in his commentary to Pirkei d'Rebbi Eliezer
concludes that the Tur's rendering of the text of the Midrash is more
accurate, and that the praise is to be directed towards the Kalah, and the
Mitzvah is to make both the Chasan and the Kalah rejoice.
According to this view, why does the Gemara in Berachos mention only making
the Chasan rejoice? The reason might be as follows. The HAMIKNEH (in Kuntrus
Acharon, beginning of EH 65) points out that when the Gemara in Berachos
says that "one who benefits from the Se'udah of a Chasan but does not make
him rejoice" is punished, it specifically means that the person *benefits*
from the Se'udah. If the person does not benefit from the Se'udah, he is not
punished for not making the Chasan rejoice. (The logic for this is that one
who partakes of the Se'udah is expected to pay the Chasan back by making him
rejoice. Thus, if he does not pay back by making the Chasan rejoice, it is
as if he ate the Chasan's food without paying for it. Moreover, his presence
there takes the place of someone else who would have caused more Simchah for
the Chasan, and thus he is causing less Simchah at the wedding.) The Gemara
here in Kesuvos (2a) teaches that it is the Chasan who prepares the Se'udah,
and therefore the obligation to reciprocate for the Se'udah is to pay back
to the Chasan. However, the Mitzvah to make them rejoice requires that one
make both the Chasan and the Kalah rejoice.
When Rashi here interprets the Beraisa's question, "Keitzad Merakdim Lifnei
ha'Kalah," to mean, "what do we say before the Kalah," he does not mean to
exclude making *her* rejoice. Rather, he means that in addition to the
*dance* that adds to her joy, what *words* should one say to help her
rejoice.
When Rashi in Berachos writes that the words for which one receives reward
are the words that one says for the Chasan to cause him to rejoice, it could
be that he focuses on the Chasan only because the men coming to the wedding
should not be talking with the Kalah (see Avos 1:5). Hence, it is the Chasan
to whom one should speak and not the Kalah.
The reasoning of Rav Elchanan clarifies this view. According to Rav
Elchanan, the main point is to cause more joy for the Chasan, and by causing
joy for the Kalah one also causes joy for the Chasan. As a result of the
mutual joy, they become closer to each other. However, the men, of course,
must be Mesame'ach the Chasan, and the women must be Mesame'ach the Kalah.
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Kesuvos 18
1) WHY IS A PERSON NOT BRAZEN TO ONE WHO LENT HIM MONEY?
OPINIONS: The Gemara discusses the law of "Shevu'as Modeh b'Miktzas." When a
person admits that he owes a portion of the money claimed by the lender, the
Torah requires that he swear that he does not owe the rest of the money.
Once he swears, he is believed. The Gemara explains that the borrower is
believed in such a case because a borrower does not brazenly deny the claim
of his creditor whom he admits lent him some money. Accordingly, the
possibility exists that the borrower really did not return *any* money to
the lender. Since the borrower would not be so brazen as to lie and deny the
entire debt, it is assumed that he may be stating a partial admission in
order to push off the lender and gain more time to pay back the loan. The
Torah therefore mandates that he support his claim with an oath that he does
not owe any money. (In contrast, when he outright denies having taken a loan
in the first place, the Torah does not require that he take an oath.)
What does the Gemara mean when it says that a borrow does not brazenly lie
in the face of the person who lent him money?
(a) RASHI in Bava Kama (107a, DH ked'Rabah) explains that the borrower
recognizes that the lender did him a favor by lending him money. The
borrower's gratitude prevents him from being brazen towards the lender. (The
Gemara in Bava Kama (107a) discusses a case in which the opposite is true:
when a person entrusted with an object to guard claims that the object was
stolen, he must take a Torah oath to this effect (according to Rav Chiya bar
Yosef) in order to exempt himself from liability. Since the person with whom
the object was entrusted was doing a favor for the owner of the object, he
is not beholden to him and has no reservations about being brazen to the
owner of the object. He must take an oath because he is suspected of
fabricating the claim that the object was stolen.
The TOSFOS HA'ROSH (DH Mipnei) asks that it is apparent from a number of
Mishnayos that one is not required to take an oath if he claims that he owes
nothing to the person whose object he watched (see Shevuos 42b, 43a, and
TOSFOS DH Chazakah), just as one is exempt from an oath in the case of a
loan (when he denies everything he is exempt from an oath, and when he
admits to part of the loan he must take an oath).
(b) TOSFOS (ibid.) quotes RABEINU TAM who explains that the Gemara's
statement that a borrower does not brazenly lie to his creditor means that
people in general are reluctant to lie (in front of Beis Din) and entirely
deny that an event ever occurred.
(c) TOSFOS (ibid.) quotes the RIVA who explains that a person does not lie
so much in front of a person who clearly knows that he is lying. (The Tosfos
ha'Rosh seems to combine the explanations of Rabeinu Tam and the Riva into a
single explanation.)
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Kesuvos 19
1) THE REASONING OF REBBI MEIR
OPINIONS: The Gemara (18b) quotes the ruling of Rebbi Meir that even when
the witnesses' signatures on a document are not authenticated from an
external source, the witnesses are *not* believed to say that they were
coerced to sign falsely even when they say they did so because their lives
were in danger. The Gemara explains that the ruling of Rebbi Meir is based
on the opinion -- as expressed by Rav Huna in the name of Rav -- that that
when a borrower admits that he wrote a loan contract, the document is
binding and does not need to be verified by witnesses. Moreover, the
borrower may not invoke the principle of "ha'Peh she'Asur Hu ha'Peh
she'Hitir" and claim that he should be believed that he paid back the loan
on the basis that he is the one who validated the document in the first
place. The fact that he originally could have said that the Shtar was not
valid does not give him more trustworthiness.
How does the opinion of Rav Huna in the name of Rav explain Rebbi Meir's
ruling?
(a) RASHI (DH Ein ha'Malveh) explains that the Gemara's discussion of Rebbi
Meir's ruling with regard to a borrower refers not only to when the borrower
admits that he wrote the loan document, but also to when he told the
witnesses to sign the document. When Rebbi Meir states (in the case of the
Mishnah) that even when the signatures are not authenticated from an
external source the witnesses are not believed to say that they were coerced
to sign falsely, he refers to a case in which the borrower admits that he
wrote the Shtar himself and had the witnesses sign it. Accordingly, there is
no reason to believe the claim of the witnesses (for they are not the "Peh
she'Asar").
TOSFOS (DH Ta'ama) questions this explanation. If the focus of the case is
the *borrower*, why do Rebbi Meir and the Rabanan discuss a case in which
the focus is the claim of the witnesses?
(b) TOSFOS quotes RABEINU TAM and the RI who explain that the reasoning of
Rebbi Meir in the case of the Mishnah is identical to the reasoning in the
case of a borrower who is not believed to say that he repaid the loan when
he admits that he wrote the Shtar. In both cases, the claimant (the borrower
or the witnesses) is not believed on the basis that he could have claimed
that the Shtar was forged. (The Rabanan maintain that this logic applies
only in the case of a borrower but not in the case of witnesses; see RITVA.)
Why, though, is this claim not valid?
1. Tosfos (DH Modeh) explains that the borrower is afraid to use the claim
that the Shtar is forged, because the lender can prove him wrong by bringing
proof that the Shtar is legitimate. Accordingly, he has no believability on
the basis that he could have claimed that the Shtar was forged. On the other
hand, he is not afraid to say that he paid back the loan, since there is no
way that the lender can prove that he is lying.
2. Tosfos adds another explanation in the name of Rashi. According to Torah
law, a Shtar is considered valid and Beis Din does not need to be concerned
that it is forged. The Rabanan decreed that when one claims that the Shtar
is forged, the Shtar may not be used until it is verified. Accordingly, when
the borrower or witnesses agree that the Shtar was not forged, the Halachah
follows the Torah law that the Shtar is valid.
This answer is difficult to understand. Although according to Torah law the
Shtar is valid, the borrower still should be able to claim that the Shtar is
invalid mid'Rabanan, since the Rabanan decreed that his claim necessitates
validation of the Shtar.
The KOVETZ SHI'URIM (volume 2, 3:4) writes that Rashi here has a different
understanding of the concept of "Migu." Normally, the concept of "Migu"
means that one should be believed with his present claim because had he
wanted to lie, he would have said the better claim. Rashi here understands
that a "Migu" gives a person believability for a different reason: since the
person would be believed if he would make a certain claim, any claim he
makes is believed as though he actually made that claim.
The Halachah states that a Shtar is considered to have been authenticated by
Beis Din as long as no one actually claims that it is forged. Since the
enactment of the Rabanan which permits a person to challenge the validity of
a Shtar is a novel concept, the Shtar's validity becomes subject to doubt
only when its validity is actually challenged. When no one challenges the
Shtar's validity, the Shtar is assumed to be valid. Accordingly, in the case
of the Gemara here, there is no "Migu" that the person could have said a
better claim, because the better claim (the fact that one may challenge the
validity of the Shtar) is a novel concept that it is not taken into account
unless it is actually utilized. The Shtar is considered a valid Shtar, and
everything written in the Shtar is taken at face value, unless someone
actually claims that the Shtar is forged.
19b-----------------------------------19b
2) KEEPING A PAID "SHTAR"
OPINIONS: The Gemara quotes Rebbi Yehoshua ben Levi who rules that a person
may not keep a loan document (Shtar) in his possession after the borrower
has repaid the loan. Similarly, it was stated in the name of Rav that a
person may not keep a Shtar Amanah (or Shtar Pasim; see RASHI to Kesuvos
79a, DH Shtar Pasim) in his possession. A Shtar Amanah is a signed loan
document written by a potential borrower, who gives it to his potential
lender to hold in the event that he later decides to borrow money. In both
cases, if the lender is permitted to keep the Shtar the possibility exists
that he will demand money from the borrower unfairly, either willfully or by
mistake (he will forget that the borrower does not actually owe him the
money).
The Gemara explains that there is a difference between these two opinions.
Rebbi Yehoshua ben Levi, who says that a lender may not keep in his
possession a paid Shtar, certainly would agree that one may not keep in his
possession a Shtar Amanah. Rav, however, who says that one may not keep in
his possession a Shtar Amanah, may permit a lender to keep a paid Shtar in
his possession. It is possible that the lender did not give back the paid
Shtar due to "Peshiti d'Safra." RASHI (DH Peshiti d'Safra) explains that the
borrower is the one who must pay the expense of producing the actual loan
document. Occasionally, a borrower is so destitute that he cannot afford to
pay the scribe who writes the Shtar, and the kindhearted lender loans him
the money for that as well. The lender is entitled to hold the Shtar -- even
after the primary loan has been repaid -- until the borrower remunerates him
for the "Peshiti d'Safra." Hence, Rav might not prohibit the lender from
keeping the paid Shtar in his possession.
What does Rebbi Yehoshua ben Levi maintain with regard to "Peshiti d'Safra"?
Does he argue that the lender indeed is prohibited from withholding the
document even when the borrow did not yet reimburse him for the "Peshiti
d'Safra"?
(a) TOSFOS (DH Zimnin) and the ROSH write that Rebbi Yehoshua ben Levi
understands that when the lender loaned the money for the writing of the
Shtar, he must return the document immediately after the borrower reimburses
him. Rebbi Yehoshua ben Levi agrees that the lender does not have to give
back the document until he is reimbursed for the "Peshiti d'Safra." This is
also the understanding of the RITVA.
(b) The RAN states that Rebbi Yehoshua ben Levi understands that "Peshiti
d'Safra" is no reason to withhold a paid Shtar, despite the fact that giving
back the paid Shtar compromises the lender's ability to get back the money
he loaned for the "Peshiti d'Safra."
The SHACH (CM 57:4) questions why the SHULCHAN ARUCH (CM 57:1) rules like
the Ran and ignores the opinions of Tosfos, the Rosh, and the Ritva (which
the Shulchan Aruch himself quotes in BEDEK HA'BAYIS on the BEIS YOSEF, CM
57). The Shach adds that it is clear to him that even according to the Ran,
one certainly may keep the Shtar in his possession if he tears it or writes
on it that the debt has been paid.
The KORBAN NESANEL (2:11:4) asserts that the Shach misunderstood the Rosh.
He explains that the Rosh does not disagree with the Ran. Rather, the Ran
refers to a case in which the lender neither marks the Shtar as unpaid nor
gives a receipt to the borrower for the repayment of the loan. In such a
case, the lender may not withhold the Shtar due to "Peshiti d'Safra." When
the Rosh rules that the lender *may* withhold the Shtar, he refers to a case
in which the lender writes that it has already been paid or gives the
borrower a receipt.
The Korban Nesanel proves that this is the intent of the Rosh (and Tosfos
and the Ritva) from the Gemara in Bava Metzia (68a). The Gemara there is
concerned about a document akin to a Shtar Amanah ("Shtara d'Mechuzai")
falling into the hands of the lender's heirs when the lender meets an
untimely death. The heirs would have no reason to suspect that the Shtar is
not genuine, and they would proceed to collect the loan as stated in the
document. Accordingly, the Rosh cannot mean that a lender may keep the Shtar
(until he gets back the "Peshiti d'Safra") without making any note that it
was paid, because the same concern that applies in the case in Bava Metzia
applies in the case of a paid Shtar. It must be that the Rosh means only
that when the lender makes a note on the Shtar that it has been paid, or
gives a receipt for the borrower, is he allowed to keep the Shtar.
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Kesuvos 20
1) TESTIMONY VIA WRITTEN AFFIDAVIT
QUESTION: The Gemara states that a witness may record in writing his
testimony about an event and refer to his written record to remind himself
of the details of the event when he testifies in Beis Din even many years
later. The Gemara quotes Rebbi Yochanan who says that this form of testimony
is valid even when the witness would not remember the details of the event
without reading his record of them.
TOSFOS (DH v'Rebbi Yochanan Omer) explains that Rebbi Yochanan does not mean
that a witness who has no recollection at all of the event may testify based
on what he wrote. The Gemara in Yevamos (31b) clearly states that such
testimony is not acceptable. Rather, Rebbi Yochanan means that when the
witness has a general recollection of what happened he may augment his
testimony with details based on his own written record from the past.
The Gemara's ruling that a witness may give testimony based on what he wrote
earlier raises a question. Why does the witness' note differ from a common
Shtar? A common Shtar records the details of a transaction, and those
details recorded in the Shtar are validated by the signature of witnesses.
The validated Shtar may be used as testimony in Beis Din as the Gemara
states (18b), "witnesses whose signatures are signed on a Shtar are
considered as though their testimony has been [presented to and] examined by
Beis Din." Why is a private note written by a witness not considered like
testimony given in Beis Din?
ANSWER: TOSFOS asserts that in order for a Shtar to be valid it must be
written with the "Da'as ha'Mischayev" -- "the consent of the one who is
being obligated [by the words of the Shtar]." Both parties involved in the
transaction must agree to write the specific details in the Shtar. In
contrast, the memoirs of a witness are written without the consent of the
parties involved, and thus his written record does not attain the status of
a Shtar.
However, this approach needs clarification. The testimony that a witness
delivers does not depend on what the parties involved want the witness to
see, hear, or report. Why does a witness' written record of the event not
attain the status of a Shtar simply because it was not written with the
"Da'as ha'Mischayev"?
RAV ISER ZALMAN MELTZER in EVEN HA'AZEL (Hilchos Edus 8:1) explains that the
reason why a Shtar is a valid attestation of the transaction is that the
signatures of the witnesses constitute an affirmation of the details at the
time they sign. Their signatures are like a formal notarization; it as if
they are testifying that whatever is written in the document is true.
Accordingly, the testimony of the witnesses is actually finished at the
moment they sign the Shtar. At that moment the details about which they are
testifying are clear and fresh in their minds. Later, if they are summoned
to Beis Din to testify and they do not remember the details of the event,
the Shtar is not considered invalid because their testimony is considered to
be the same as it was at the time they signed the Shtar. This is what the
Gemara earlier (18b) means when it says, "witnesses whose signatures are
signed on a Shtar are considered as though their testimony has been
[presented to and] examined by Beis Din." At the time they sign the Shtar,
it is as if Beis Din was present and accepted their testimony.
Why, though, does Beis Din accept all of the details written in a Shtar as
true, as if the testimony has already been examined and scrutinized? It must
be because the Shtar was written with the "Da'as ha'Mischayev." The
"Mischayev" (the borrower) certainly would not let anything untrue be
written in the Shtar to his detriment. Accordingly, the details written in
the Shtar with the "Da'as ha'Mischayev" are treated as validated testimony.
In contrast, a record of the details which was written without the "Da'as
ha'Mischayev" is not treated as testimony examined by Beis Din. Any form of
testimony in writing, such as the written memoirs of a witness, or a written
affidavit the witnesses send to Beis Din, does not have the credibility of
testimony which has already been examined by Beis Din.
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