SHEVUOS 48 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

19)KEEPING A PARTIALLY OR FULLY PAID DOCUMENT [documents: keeping]

(a)GEMARA

1.(Mishnah): Just like a woman must swear to collect the rest of a Kesuvah that was already partially paid... also orphans must swear to collect.

2.(Rav Papa): If Reuven lent money with a document and partially collected the loan, even though Reuven would need to swear to collect the rest, his heirs inherit the (right to collect) the money.

3.Kesuvos 19a (Rav Kahana): One may not keep a document of Amanah (for a loan that was not given) - "do not let Avlah (fraud) dwell in your home".

4.19b (R. Yehoshua ben Levi): One may not keep in his house a document for a loan that was paid - "do not let Avlah well in your home".

5.Rav Kahana permits keeping a paid document. Sometimes the lender keeps it until the borrower pays the cost of the document.

6.Bava Metzia 16b (Rava): One who finds a (regular) loan document, does not return it, for perhaps the borrower paid, and he is not at fault. Perhaps the lender was holding the document until the borrower paid the scribe's wage!

7.18a: Where people do not write Kesuvos, the Get is the Kesuvah. One cannot claim that he paid his wife, for then he should have torn the Get!

8.Rejection: He cannot tear it, for she needs it to remarry!

(b)RISHONIM

1.Rif (Kesuvos 6b): One may not keep a paid document in his house.

i.Ran (DH Asur): R. Yehoshua forbids keeping a paid document, even to be paid the scribe's wage, even though the borrower must pay it. This is clear from the Gemara.

ii.Ran (DH Tanai): If a document is on condition, one may keep it, for some lien begins now.This is no worse than keeping a document for 100 even though only 50 is owed. One opinion in the Gemara allows even to keep a paid document in order to be paid the scribe's wage.

2.Rosh (Kesuvos 2:11): Rav Kahana holds that the verse would not call keeping a paid document Avlah, for sometimes one may keep it, i.e. until the borrower pays the cost of the document. R. Yehoshuah holds that one should be careful not to keep it after the scribe's wage was paid, and if he was not, this is called Avlah Keeping it to be paid the scribe's wage is not called Avlah. This is not improper.

(c)POSKIM

1.Shulchan Aruch (CM 57:1): One may not keep in his house a paid document (Rema - the same applies if its lien was pardoned).

i.SMA (2): The Rema includes when he pardoned only the lien on land, but the debt is still owed. Alternatively, he includes a document that was paid, and used again for another loan (it is invalid)

ii.Rebuttal (Shach 2): If only the lien on land was pardoned, one may keep the document to collect from property the borrower still owns. The Rema teaches that even if the document was not paid, just the lender pardoned it, he may not keep it.

iii.Gra (1): It is Avlah, for it can be used to collect improperly from buyers.

2.Shulchan Aruch (ibid): If a lender refuses to return a paid document, it is proper to excommunicate him until he returns it.

i.Rashbatz (1:24, cited in Beis Yosef DH Asur): This is because he transgresses a Lav from Nevi'im.

ii.Gra (2): We excommunicate for transgressing mid'Rabanan laws.

iii.Shach (61:16): Even if the borrower is silent and does not demand the document, or if the lender consents to return it but stalls from day to day, we excommunicate him immediately. If the borrower demands the document, even without a Lav from Nevi'im, we would force the lender to return it, lest he claim payment another time! We must say that no receipt was given, for if there was a receipt, one may keep the document, like I proved (below, 6). Or, perhaps the Heter is only when the receipt is written on the document itself, or when the lender needs to keep the document because part is still owed. Here it is forbidden, for there is no reason to keep the document.

3.Shulchan Aruch (ibid): One may not keep a (paid) document if the borrower owes (only) the scribe's wage.

i.Question (Shach 4): Tosfos, the Rosh Answer Ritva hold that one may keep a paid document in order to collect the scribe's wage. Why did the Shulchan Aruch rule like the Ran against them? Surely one may keep it if he tears it or writes on it 'this was paid.'

ii.Drishah (1): Bava Metzia 16b supports Tosfos and the Rosh. Why the Beis Yosef (on the Tur and in the Shulchan Aruch) brought only the Ran's opinion? What is the Ran's proof, and why didn't he mention that Tosfos disagrees? It seems that he holds that surely no one would permit keeping a document after it and the scribe's wage were paid. Rather, the Amora'im argue about before the scribe's wage was paid. Tosfos and the Rosh agree. They merely mean that all agree that keeping it to be paid the scribe's wage is not called Avlah (but R. Yehoshua forbids, lest he forget to return it later).

4.Rema: In a place where the borrower does not pay the scribe's wage, he need not return it, but he must tear it.

i.Gra (4): Bava Metzia 18a suggested that one who paid his wife should have torn the Get. It did not suggest that he should have taken the Get, because she pays for it, so surely she keeps it.

ii.SMA (5): Even in such a place, if the borrower paid the wage, the lender must return the document.

iii.Shach (5): The Rema understands that the Shulchan Aruch forbids even if he tears the document, for it belongs to the borrower. This is wrong. The Isur is due to "do not keep Avlah"!

5.Shulchan Aruch (ibid): However, one may keep a document for 100 even if only 50 is owed, if he writes a receipt on the back of the document, or he writes a separate receipt and gives it to the borrower.

i.Rebuttal (Shach 6): The Shulchan Aruch and the Bach explain that the Ran permits to keep such a document only when he wrote a receipt. This is wrong. The Ran learns that one may keep a document on condition from the Heter to keep a document for 100 even though only 50 is owed. He does not mention a receipt. If the latter were forbidden without a receipt, how could he learn to a document on condition, in which there is no receipt? And if he learns from when there is a receipt, he should have brought his proof from the many places in Shas where it is clear that we write receipts without concern for Avlah. If the Ran discusses when there is a receipt, also keeping a document to be paid the scribe's wage is when a receipt is written on it. If so, why does anyone forbid?! The Shulchan Aruch holds that a receipt permits keeping a document for 100 even though only 50 is owed, but not keeping a document just for the scribe's wage. This is unclear. Whenever David holds Levi's property, he may retain it for a debt that Levi owes him for an unrelated reason. The Gemara compares keeping Amanah, in which there is no receipt, to keeping a document. One may keep a document for 100 even if only 50 is owed, even without a receipt. Avlah is only when one keeps a document for no proper reason. Not writing a receipt is not Avlah. Many people trust each other!

ii.Conclusion (Shach): Even the Ran permits keeping a document for 100 even if only 50 is owed, even without a receipt. All the more so, those who permit keeping a document to be paid the scribe's wage (Tosfos, the Rosh,...) permit this!

iii.Rebuttal (Korban Nesan'el (on Rosh, 4): Perhaps the lender will die, and his heirs will collect with the document! We are concerned for this in Bava Metzi'a (68a), and the same applies here! It seems that the Heter to keep the document for the sake of its cost is when he gives to the borrower a receipt, but deducts the cost of the document. Alternatively, he writes on the document that it was paid, or tears it, unknown to the borrower (so the borrower will feel pressured to pay). It seems that the Rosh and Ran do not argue. The Ran forbids keeping a paid document without tearing it or writing a receipt, and the Rosh permits when one tears it or writes a receipt.

OTHER D.A.F. RESOURCES ON THIS DAF