א׳ בתשרי ה׳תשע״ז (October 3, 2016)

Bava Metzia 7a-b The Standard and the Essential

Up until this point in the discussion of how to rule when two people are both holding – and claiming ownership of – a single object, we have been dealing with things that can theoretically be divided between the two parties. Our Gemara brings a baraita that discusses a case where two people are holding onto a shetar – a legal document (in this case a promissory note) – where the lender claims that it is his and he had dropped the note and the borrower agrees that it had once been the lender’s but that now he had paid the debt and it belonged to him. The baraita quotes a disagreement in this case, with Rabbi Yehuda HaNasi ruling that the shetar should be examined by the courts to see if it is reliable and Rabban Shimon ben Gamliel arguing that the two people should divide the sum of money that is in doubt.

In reaction to the discussion that follows, Rabbi Elazar states that division would only make sense if they were both holding the tofes or the toref, but if one is holding the tofes and the other is holding the toref, each of them will be given the part that they are holding.

All legal documents are made up of two parts – the tofes, which is the standard language that applies in all cases, and the toref, which are the individualized parts of the documents, like the people’s names, and so forth. The word tofes stems from a Greek term meaning “stamp” or anything that is made using a single mold that is used over and over again. Sometimes the word matbe’a is used, which has a similar meaning. The word toref also likely has it roots in Greek, from a term meaning something that changes or is unstable. Aside from names and dates, the toref can also include special conditions that are applied to this particular situation or business deal.

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