1)DOES MESIRAH SUFFICE TO TRANSFER A DOCUMENT?

(a)Question (against Abaye and Rabah - Beraisa): Just like no one can use a document to claim money from either of them, neither of them can use a document to claim money from someone else.

1.Question: What do the Tana of our Mishnah and the Tana of this Beraisa argue about?

2.Answer #1: (Neither is concerned lest one dropped it and his namesake found it.) They argue about whether or not a document is acquired by Mesirah (handing it over):

i.The Tana of our Mishnah holds that a document is acquired by Mesirah. (If one gave it to the other, the bearer is entitled to collect);

ii.The Tana of the Beraisa holds that a document is not acquired by Mesirah (if the bearer received it from his namesake, this does not entitle him to collect).

3.Answer #2: All agree that a document is acquired by Mesirah;

i.They argue about whether the bearer must prove that it was given to him. The Tana of our Mishnah does not require him to bring proof, the Tana of the Beraisa requires him to bring proof.

(b)(Abaye): A document is acquired by Mesirah. The bearer must prove that it was given to him;

(c)(Rava): The bearer need not prove that it was given to him.

(d)Version #1 - Support (Abaye, for himself - Beraisa): If Yehudah is holding a loan document, and he claims that his brothers gave it to him, and they claim that he grabbed it. he must bring proof.

1.Suggestion: Also in general, the bearer must bring proof.

(e)Rejection (Rava): No, this applies only to brothers, for they often take things from each other.

(f)Version #2 - Support (Rava, for himself - Beraisa): If Yehudah is holding a loan document, and he claims that his brothers gave it to him, and they claim that he grabbed it. he must bring proof.

1.Suggestion: This applies only to brothers, for they often take things from each other. Normally, the bearer need not bring proof.

(g)Rejection (Abaye): No, it applies to everyone. The Beraisa discusses brothers, for this is a Chidush;

1.Since they often take things from each other, they guard documents from each other. One might have thought that Yehudah need not bring proof. The Beraisa teaches that this is not so.

2)DOCUMENTS FOR AND AGAINST NAMESAKES

(a)Question (Beraisa): Just like either of them can use a document to claim money from someone else, one of them can use a document to collect from the other;

1.Why does this Tana argue with the Tana of our Mishnah?

(b)Answer: They argue about whether we write a document for the borrower in the absence of the lender;

1.The Tana of our Mishnah holds that we write a document for the borrower in the absence of the lender. Perhaps the bearer asked a scribe and witnesses to write a document for him to borrow from his namesake, and now he claims that he lent to his namesake. (Therefore, he cannot collect.)

2.The Tana of the Beraisa holds that we do not write a document for the borrower in the absence of the lender.

(c)(Mishnah): If Levi found among his documents a note saying 'the document of Yosef ben Shimon was paid', he cannot collect a loan from either of them.

(d)Inference: Had he not found this receipt, he could have collected.

(e)Contradiction (Mishnah): No one can use a document to claim money from either of them.

(f)Answer #1 (R. Yirmeyah): The case is, Levi's documents have the grandfather's name (proving to which one he lent).

1.Question: The grandfather indicates which one paid his loan!

2.Answer (R. Hoshaya): The case is, the loan documents have the grandfather's name,but the receipt does not.

(g)Answer #2 (Abaye): The Mishnah means, if Levi found among his documents a note saying 'the document with which I borrowed from Yosef ben Shimon was paid', neither can collect a loan from him (neither can prove that his document was not paid).

(h)(Mishnah): Documents for them should include the grandfather's name...

(i)(Beraisa): If their grandfathers had the same name, and both are Kohanim (or Yisraelim), we write more ancestors (until we distinguish them).

3)A DOUBT ABOUT WHICH DOCUMENT WAS PAID

(a)(Mishnah): Reuven told his son 'one of my documents was paid. I do not know which', his son cannot collect any of them.

1.If two documents were against the same person, he may collect the smaller, but not the larger.

(b)(Gemara - Rava): If Shimon told Levi 'one of my documents (against you) was paid', he may collect the smaller, but not the larger;

1.If he said 'your debt to me was paid', he cannot collect any document against him.

(c)Question (Ravina): If so, will you say that if a document said 'my field is sold to you', the larger field is sold, and if it says 'the field that I have is sold to you', all his fields are sold?!

(d)Answer (Rava): No. The bearer of a document has the lower hand.

4)COLLECTING FROM AN AREV

(a)(Mishnah): If Reuven lent to Shimon, and Levi was an Arev (guarantor), Reuven may not collect from Levi.

173b----------------------------------------173

1.If Reuven stipulated (at the time of the loan) 'on condition that I can collect from whichever of you I want', he can collect from Levi.

2.R. Shimon ben Gamliel says, if Shimon has property, in any case Reuven cannot collect from Levi.

(b)Similarly, R. Shimon ben Gamliel says, if Yehudah was an Arev for David (in case David will need) to pay his wife's Kesuvah, and he is divorcing her, David must vow Al Da'as Rabim (according to the will of many others, so the vow cannot be annulled) that he will not benefit from her, lest the divorce is just a scheme to collect from Yehudah, and David plans to remarry her.

(c)(Gemara) Question: Why can't he collect from the Arev?

(d)Answer #1 (Rabah and Rav Yosef): The Arev can say 'I took responsibility only in case Shimon will die or flee. He is here!'

(e)Objection (Rav Nachman): That is like Persian law!

1.Objection: Just the contrary! The Persians collect from the Arev first!

2.Answer: He means that is like the Persian law, i.e. it is illogical.

(f)Answer #2 (Rav Nachman): The Mishnah means that he may not collect from Levi first.

(g)Support (Beraisa): If Reuven lent to Shimon, and Levi was an Arev, Reuven may not claim from Levi first;

1.If Reuven stipulated 'on condition that I can collect from whichever of you I want', he can claim from Levi first.

(h)Question (Rav Huna): What is the source that an Arev becomes obligated?

(i)Answer #1 (Rav Huna): "Anochi E'ervenu" (Yehudah was an Arev for Binyamin).

(j)Objection (Rav Chisda): This was not regular Arvus, rather Kablanus (a special kind of Arvus, as if he himself received the loan, like Reuven had offered) - "Tenah Oso Al Yadi va'Ani Ashivenu."

(k)Answer #2 (R. Yitzchak): It says "Lekach Bigdo Ki Arev Zar", and "Beni Im Aravta... Nokashta v'Imrei Ficha... Lech Hisrapes u'Rhav Re'echa";

1.If you owe him money (on behalf of the borrower), pay him. If not (rather, you insulted him), bring friends to request his pardon.

(l)(Ameimar): R. Yehudah and R. Yosi argue about whether an Arev becomes obligated:

1.R. Yosi says that Asmachta (an exaggerated promise) is binding, and also an Arev becomes obligated (he does not benefit, yet he accepts to pay if the borrower will not);

2.R. Yehudah says that Asmachta is not binding, so an Arev does not become obligated.

(m)Objection (Rav Ashi): We rule that Asmachta is not binding, yet an Arev becomes obligated!

(n)(Rav Ashi): Arvus is not Asmachta. The Arev benefits. Since the lender trusts him (and lends the borrower due to the Arev), he decides absolutely to accept responsibility as if he himself borrowed.

(o)(Mishnah): If Reuven stipulated 'on condition that I can collect from whichever of you I want'...

(p)(Rabah bar bar Chanah): This is only if Shimon has no property. If he has, Reuven cannot collect from Levi.

(q)Question (Seifa - R. Shimon ben Gamliel): If Shimon has property, in any case Reuven cannot collect from Levi.

1.Inference: The first Tana holds that even in this case, he can collect from Levi!

(r)Answer: The Mishnah is abbreviated. It means as follows. If Reuven lent to Shimon, and Levi was an Arev, Reuven may not collect from Levi;

1.If Reuven stipulated 'on condition that I can collect from whichever of you I want', he can collect from Levi.

2.This is if Shimon has no property. If he has, Reuven cannot collect from Levi.

3.If Levi is a Kablan, even if Shimon has property, Reuven can collect from Levi.

4.R. Shimon ben Gamliel says, if Shimon has property, Reuven cannot collect from an Arev nor from a Kablan.

(s)(Rabah bar bar Chanah): The Halachah always follows R. Shimon ben Gamliel in a Mishnah, with three exceptions: our Mishnah about an Arev, the case of a conditional Get in Tzidon, and a litigant who thought that he did not have a proof, and later found one.

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