12th CYCLE DEDICATION
KESUVOS 16-17 - Generously sponsored by Marsha and Lee Weinblatt of Teaneck, New Jersey. May Hashem bless them with a Kesivah va'Chasimah for a year of health, prosperity and much Yiddishe Nachas from their wonderful children and grandchildren.

16b----------------------------------------16b

1)

MUST A BORROWER PAY AND ACCEPT A RECEIPT? [receipt:accepting]

(a)

Gemara

1.

Version #1 (Mishnah): If witnesses say that she had a Hinuma (a veil like virgins normally have, her Kesuvah is 200).

2.

Question: We should be concerned lest she bring witnesses and collect in Beis Din, and later show her Kesuvah and collect again in another Beis Din!

3.

Answer #1 (R. Avahu): This shows that we write a receipt. (When a creditor says that he lost his document, he collects and gives a receipt to the borrower to prove that he paid.)

4.

Answer #2 (Rav Papa): Our Mishnah discusses a place where they do not write Kesuvos.

5.

Question: Perhaps she will bring witnesses and collect in Beis Din, and bring witnesses and collect again in another Beis Din!

6.

Answer: Certainly, where there is no alternative, we write a receipt.

7.

89a (Mishnah): If a woman shows a Get without a Kesuvah, she collects a Kesuvah.

8.

Inference: This teaches that we write a receipt! If not, we should be concerned lest she show her Kesuvah (after her ex-husband dies, claim that she was widowed) and collect again!

9.

Rejection (Rav): This is no proof. The Mishnah discusses a place where Kesuvos are not written (so there is no concern).

10.

(Shmuel): The Mishnah discusses even a place where Kesuvos are written.

11.

Question: Does Shmuel hold that we write a receipt?!

12.

Answer (Rav Anan): No. Where Kesuvos are written, if she claims that he did not write a Kesuvah, she must bring proof.

13.

Bava Basra 170b (Mishnah - R. Yehudah): If Reuven paid part of his debt to Shimon, he exchanges (tears the document and writes a new document for the remainder);

14.

R. Yosi says, Shimon gives Reuven a receipt for what he paid.

15.

R. Yehudah: If so, Reuven must guard his receipt lest mice eat it (and Shimon will force him pay the entire debt)!

16.

R. Yosi: That is better than making Shimon lose his lien (from the time of the original document).

17.

171a: R. Yosi holds that we write a receipt for two reasons: to encourage Reuven to pay quickly (he fears lest he lose the receipt), and to allow Shimon to collect (property sold) from the original date.

18.

Question: Also according to R. Yehudah, Shimon can collect from the original date!

19.

Answer: (In the Mishnah, R. Yehudah said 'he exchanges', this could mean, the new document is from today's date.) R. Yosi says, if you say that the new document is from the original date, I argue with you for one reason. If you say that the new document is from today's date, I argue with you for two reasons.

20.

171b (Rav Huna brei d'Rav Yehoshua): Even the opinion that forces a borrower to accept a receipt says so only when he still owes part of the money.

21.

Rejection: This is wrong. He must accept a receipt even when the entire loan was paid.

22.

R. Aba owed money to Rav Yitzchak bar Yosef. Rav Yitzchak said that he lost the document. He requested payment and offered to write a receipt.

23.

R. Aba: Rav and Shmuel say, we do not force a borrower to accept a receipt. (I need not pay until I get back the document.)

24.

R. Chanina bar Papa: We revere Rav and Shmuel. However, R. Yochanan and Reish Lakish say that we force a borrower to accept a receipt.

25.

(Ravin): We force a borrower to accept a receipt.

26.

Support: Presumably, this is correct. If not, if the lender lost his document, should the borrower keep the money?!

27.

Objection (Abaye): To the contrary! If we force a borrower to accept a receipt and he loses it, should the lender collect twice?!

28.

Answer (Rava): Yes! "V'Eved Loveh l'Ish Malveh".

29.

Question (Rav Yemar): Nowadays, we write postdated documents and we write a receipt. We should be concerned (lest the loan document is dated after the receipt, proving that the receipt was for a different loan)!

(b)

Rishonim

1.

Rif (5b): Why aren't we concerned lest she bring witnesses and collect in Beis Din, and show her Kesuvah and collect again in another Beis Din? R. Avahu answered that this shows that we write a receipt. Rav Papa answered that our Mishnah discusses a place where they do not write Kesuvos. Still, perhaps she will bring witnesses and collect in Beis Din, and bring witnesses and collect again in another Beis Din! Since there is no alternative, surely we write a receipt.

2.

Rif and Rosh (Bava Basra 79a and 10:28): The Halachah is, we write a receipt. Rav Huna brei d'Rav Yehoshua said that no one forces a borrower to accept a receipt when the entire loan was paid. This was rejected. We force him to accept a receipt even in this case. A case occurred in which Rav Yitzchak lost his document. R. Aba wanted to rely on Rav and Shmuel, and not pay until getting the document. R. Chanina bar Papa ruled like R. Yochanan and Reish Lakish, who force a borrower to accept a receipt. It is unreasonable that if the lender lost his document, the borrower will keep the money. Even though the lender might collect twice if the borrower loses the receipt, "V'Eved Loveh l'Ish Malveh".

i.

Nimukei Yosef (DH Gemara): Because "V'Eved Loveh l'Ish Malveh", it is proper that the borrower pay and toil to guard his receipt.

3.

Rambam (Hilchos Malveh 23:16): If Reuven came to pay his debt and Shimon said that he lost the document, Reuven pays his entire debt and Shimon writes a receipt.

i.

Hagahos Maimoniyos (90): The Halachah follows R. Yosi against R. Yehudah. Also, we follow R. Yochanan and Reish Lakish even though Rav and Shmuel argue, and we follow Rava against Abaye.

ii.

Rashi (Kesuvos 89a DH Shma): The Gemara asked incredulously 'This implies that we write a receipt!' This shows that we hold that we do not write a receipt.

iii.

Rebuttal #1 (Tosfos 89a DH Shma): The Gemara merely sought to challenge the opinion that we do not write a receipt. In Bava Basra we say 'Nowadays, we write a receipt.' This shows that this is the Halachah.

iv.

Rebuttal #2 (Hagahos Maimoniyos 90, citing Avi ha'Ezri): The Gemara asked only regarding Kesuvos (16b and 89a), in which "V'Eved Loveh l'Ish Malveh" does not apply.

v.

Lechem Mishneh: The Tur (CM 54) says that when we know the date on the loan document, we write a receipt for a document with that date. The Rashba (2:342) says that a receipt is valid even if witness say that it was written before the date on the document, for perhaps the document was postdated, and this is why the receipt was not dated.

4.

Rambam (ibid.): Reuven may impose a Cherem Stam (without specifying at whom it is intended) against one who hides his document and claims that it was lost. If Reuven claims that Shimon Vadai has the document and he put it in his wallet, my Rebbeyim said that Shimon swears Heses that it was lost, then Reuven pays and gets a receipt.

(c)

Poskim

1.

Shulchan Aruch (CM 54:2): If Reuven came to pay his debt and Shimon said that he lost the document, Reuven pays his entire debt and Shimon writes a receipt. Reuven may impose a Cherem Stam against one who hides his document and claims that it was lost. If Reuven claims that Shimon Vadai has the document and now he put it in his wallet, Shimon swears Heses that it was lost, then Reuven pays and gets a receipt.

i.

Beis Yosef (DH Kosav): Shevu'as Heses is only for a Vadai claim.

ii.

Magid Mishneh (Hilchos Malveh 23:16): Even if the paper of the document is not worth a Perutah, the borrower would pay more than a Perutah for it, due to the proof in the document, even after the receipt was written. Therefore, Shimon must swear about it.

iii.

Shach (4): Chachamim obligated to swear about it as if it is worth a Perutah. Really, it is not worth a Perutah. We do not swear about documents because they are not intrinsically money. Also, if it was worth a Perutah, the borrower would not need to pay until it is returned. He would swear that the lender has it and be exempt! Also, we never find Shevu'as Heses in order to receive. The Rambam and Shulchan Aruch say that Shimon swears Heses, then Reuven pays. Really, Shimon swears Heses after Reuven pays. Also in other places the Shulchan Aruch says that Shevu'as Heses precedes payment, but really it is after.

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