ט׳ בתשרי ה׳תשע״ז (October 11, 2016)

Bava Metzia 16a-b: Returning Deeds of Transfer to the Lender

As we learned on yesterday’s daf, when someone borrows money and the loan is formalized in a shetar – a promissory note – it was commonplace to include ahrayut nekhasim – a guarantee that the loan would be paid from real estate held by the borrower at the time of the loan. On occasion the  would be called in to effect that payment, and they would write a court document that officially declared that the borrower’s property had been “purchased” by the lender. Such documents were called shetarei haltata (bills of foreclosure) which award property to a creditor as payment for the debt owed, or shetarei adrakhta (bills of authorization) where the court gives the right to the lender to collect from the borrower’s property.

Rabbi Zeira teaches that documents like these are the court documents that can always be returned to their owner, since they are not used to collect a debt, rather they are written to be used as proof after the court had already transferred the property to the lender. [Many of the rishonim remove the term shetarei adrakhta from the Gemara, leaving only shetarei haltata since a shetar adrakhta was used to collect a debt, and we would need to be concerned that the debt had already been paid.]

Rava argues with Rabbi Zeira, suggesting that even shetarei haltata may be considered documents that can be used to collect a debt, since the borrower who lost his field has the right to buy it back from the lender up to a year later, or perhaps even longer. If he paid the lender for the field, he could have demanded return of the shetarei haltata from the lender, so that the lender would no longer be able to claim that he had purchased the field. Nevertheless, Rava agrees with Rabbi Zeira that shetarei haltata can be returned to the lender if they are found, since the borrower must live with the consequences if he lost it – he should have torn up the shetar haltata or asked for a separate contract that would prove that he had repurchased the field.

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