1) THE BORROWER'S CONCERN
QUESTION: According to Rava, the argument between the Tana Kama and Rebbi Yehudah is whether or not we write a Shover (receipt of payment of debt) for the borrower. According to the Tana Kama, a contract is not valid and has no use after it was paid back, because the borrower has a Shover that renders the contract useless.
RASHI explains that the contract is no longer of value because the borrower has no interest in keeping it, even as a bottle-stopper, because he is afraid that he might lose it and the lender will find it and attempt to claim the debt a second time. Furthermore, even if the lender does not give the contract back to the borrower after he pays back the debt, the borrower does not care about it because he has in his possession a Shover that proves that he paid.
Rashi contradicts himself. Rashi first says that the borrower will go out of his way to ensure that the lender does not get the contract back (he gets rid of it completely and does not even keep it for use as a bottle-stopper). Rashi then says that even if the lender has the contract, the borrower is not concerned, because the lender is obligated to get rid of it. How can Rashi say that the borrower is not concerned when the lender has the contract, when he just said that the borrower is afraid that if the lender has the contract, he will try to claim the debt from him a second time? If the borrower is concerned that the lender will get hold of the contract, then certainly he should be concerned when the lender already has it! (MAHARSHA and Acharonim)
(a) The MAHARSHA explains that the borrower does not care if the lender has the contract, because he knows that the lender is forbidden to keep it and thus he will burn it.
(b) This answer is difficult to understand. Why, according to the Maharsha, is the borrower so concerned that the contract not get into the hands of the lender, when it is presently in the borrower's hands? It must be that he is afraid that the lender is dishonest and will try to collect with it again. If he is afraid that the lender is dishonest, then he should have the same concern when the lender himself is holding the contract!
RASHI (end of DH v'Hacha b'Chosvin) explains that according to Rebbi Yehudah, who maintains that we do not write a Shover for the borrower, the borrower has a legal claim against the lender to give him back the contract (and if the lender refuses, he must return the money to the borrower). Accordingly, when Rashi explains the Tana Kama's opinion (that we do write a Shover for the borrower), he means that the borrower has no legal claim in court to get the contract away from the lender. If the borrower argues that he wants it as a bottle-stopper, the lender can retort that the borrower does not really want to use it, but wants to destroy it. Since the contract is of no monetary value to the borrower there is no reason to require the lender to give it back to the borrower. If the borrower says that it is of value to him because he wants to avoid having to pay a second time, then Beis Din retorts that if he wants to avoid having to pay a second time it is his responsibili!
guard his Shover. He has no right to say that he does not want to guard the Shover but wants to instead destroy the original contract (since the Tana Kama's opinion is that we write a Shover and give the borrower such responsibilities).
This is what Rashi means when he says that the borrower does not care if the lender does not return the contract to him. Granted, he does care emotionally, so to speak, but from a legal perspective, he has no claim in court to force the lender to return the contract to him. The court has no concern or need to give the contract back to the borrower. (M. KORNFELD)