Bava Basra - Daf 170
- הבא לידון בשטר ובחזקה: Machlokes if עדי מסירה כרתי or עדי חתימה כרתי
A Baraisa states: הבא לידון בשטר ובחזקה – if [someone occupying a property] comes to litigate with a שטר and claims he established a chazakah of three years, Rebbe says: נידון בחזקה – he is judged with the chazakah, and Rabban Shimon ben Gamliel says he is judged with the שטר. After the first two explanations are rejected, Rebbe Avina says their argument concerns a שטר which has no עדים signed on it. Rebbe holds like Rebbe Elazar, that עדי מסירה כרתי – the witnesses to a get’s delivery empower it to sever a marriage, or any שטר’s effectiveness, and signatures are not required. Therefore, Rebbe says he can also use his שטר to prove his ownership (if עדים attest to its delivery), or he can use his chazakah. Rabban Shimon ben Gamliel holds like Rebbe Meir, that עדי חתימה כרתי – witnesses who sign a שטר empower it to sever a marriage, so a שטר without signatures is invalid, and he must prove his chazakah to establish ownership. Alternatively, they argue whether, מודה בשטר שכתבו – when one admits he wrote a שטר but claims it is invalid, the holder of the שטר must certify it.
- לברר: if one must corroborate claims he made unnecessarily
The Gemara provides a final explanation of the above machlokes: בלברר קמיפלגי – they argue if one must corroborate a claim he made unnecessarily. The case is where the occupant brought witnesses that he occupied the property for three years (which awards him the property even without a שטר), but he additionally claimed he has his שטר. Rebbe holds that since he claimed to have the שטר, he must produce it to win the case, and his chazakah is insufficient. Rabban Shimon ben Gamliel holds that he can litigate his case with his chazakah alone, and is not required to substantiate his superfluous claim that he has his שטר (accordingly, Rebbe’s opinion is the more stringent, the reverse of the earlier interpretations). This is supported by an incident in which Rebbe Abba claimed to have paid a debt in front of two עדים, whom he named. Rebbe Yitzchak Nafcha ruled that those עדים must come forward to testify. Although a borrower can claim he paid (an oral loan) without עדים, Rav said that if he claims he paid before two specific people, he needs them to testify. Rebbe Abba explains that he held like Rebbe.
- If the שטר of a partially paid debt is replaced, or a שובר is written
The next Mishnah states: מי שפרע מקצת חובו – if one paid part of his debt, and wants to prevent the lender from collecting the entire amount again, Rebbe Yehudah says: יחליף – he should exchange the שטר for a new one, using the original date, and record only the remaining debt. Rebbe Yose says he should write a שובר – receipt for the paid amount. Rebbe Yehudah objected: נמצא זה צריך להיות שומר שוברו מן העכברים – but this results in [the borrower] having to guard his receipt from the mice, because if it is destroyed, the lender can collect the entire debt!? Rebbe Yose replied: כך יפה לו – that is fitting for [the lender], ולא ירע כחו של זה – and his position should not be weakened by having to replace his שטר.
Rav says the halachah does not follow either Tanna; rather, Beis Din tears up his original שטר and writes him a new one with the original date. Rav Huna explains that Rav holds that only Beis Din, can write a replacement שטר with the original date, because אלימי לאפקועי ממונא – they have the power to take away money, but עדים cannot write a second שטר with אחריות.
