ו׳ בתמוז ה׳תשע״ז (June 30, 2017)

Bava Batra 160a-b: Two Types of Contracts

Oftentimes we have discussed the use of contracts as instruments that seal and clarify agreements. Such documents are never mentioned in the Torah – how are they viewed and regulated by Jewish law?

This question is the central issue dealt with in Perek Get Pashut, the tenth and final perek in Massekhet Bava Batra.

Although contracts are not mentioned in the Torah, there is a lengthy description of writing a contract in a poignant story related in Sefer Yirmiyahu (Chapter 32) where Yirmiyahu, who has been imprisoned for prophesying the destruction of the Temple and the exile of the Jewish people from their land, purchases a plot of land from his uncle, symbolizing the eventual return of the people from exile. Although the Gemara concludes that we cannot learn details of contract law from the story in Sefer Yirmiyahu, nevertheless we see that during First Temple times the rules that regulated written contracts were already established.

During the times of the Mishna , there were two types of contracts, ordinary ones and special ones that were called a shetar mekushar or a “tied-up document.” Our Mishna teaches that ordinary contracts were signed by the witnesses under the text in the document itself, while in a shetar mekushar their signatures would appear on the back of the document. Although a shetar mekushar was originally established for use in divorce documents – gitei nashim – so that kohanim who would not be able to remarry their first wife would have time to rethink their decision, they were established for use in ordinary business transactions, as well.

According to Rashi, the get mekushar was written as follows: a line of the contract would be written and the next line was left empty and folded over, a process that was repeated as necessary. When finished, the witnesses would sign the back and the document would be sewn together.

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