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Bava Basra, 70

1) A "MIGU" AGAINST A "SHTAR"

QUESTION: Rav Amram discusses a case in which a person deposits an object with a Shomer to watch, and he writes a Shtar attesting to the deposit of that object with the Shomer. Rav Amram asks what is the Halachah when the owner of the object presents the Shtar and asks the Shomer to return it to him, and the Shomer says that he already returned it. Do we believe the Shomer (with a Shevu'ah) since he has a Migu that he could have exempted himself by saying that the object was lost through an Ones and by making a Shevu'ah (Shevu'as ha'Shomrin), or does the fact that the Mafkid is holding a Shtar override the Migu, because the Shtar is tantamount to testimony that the object was not yet returned?

Rav Amram does not ask what the Halachah is in a case in which a person who *borrowed* money claims that he paid back the loan. It is obvious to Rav Amram that, in that case, the borrower is not believed, because he has no Migu, and because the Malveh is holding a Shtar. Why, though, does Rav Amram not ask what the Halachah is in a case in which the borrower claims that he paid back the loan and the Shtar is *not* Mekuyam? The same question should apply there -- do we believe the borrower with a Migu that he could have said that the Shtar is forged and require the Malveh to be Mekayem the Shtar, or does the fact that the Malveh is holding a Shtar override the Migu?

The Halachah in this case, in fact, is a Machlokes Tana'im (Kesuvos 19a), and we rule that the borrower *does* have a Migu. Since Rav Amram did not discuss that case, he presumably agrees with the ruling in Kesuvos that the borrower is believed with a Migu, despite the fact that the lender is holding a Shtar.

What, then, is the difference between the case of a borrower and the case of a Shomer? If Rav Amram considers -- in the case of a Shomer -- the holding of the Shtar to be powerful enough to override a Migu, then it should override a Migu in the case of the borrower as well! (TOSFOS DH O Dilma)

ANSWERS:

(a) TOSFOS answers that the presence of a Shtar is a greater proof in the case of a deposit than in the case of a loan. A person will sometimes repay a loan without demanding the return of the Shtar, whereas a Shomer will never return a deposit without demanding the return of the Shtar. Tosfos gives several reasons for this difference. First, the borrower feels grateful and beholden to the lender for the favor that the lender did by lending him money, and thus he does not want to press him for the Shtar. Second, the borrower is obligated to pay for the writing of the Shtar, since the loan is to his benefit. If the Malveh paid for the writing of the Shtar (thereby making the payment of the scribe's wage an additional loan (Ba'al Peh) to the borrower), then he has the right to withhold the Shtar even after the borrower pays back the loan until the borrower also pays for the writing of the Shtar. Therefore, it is possible for the lender to still be holding the Shtar, even though the loan is paid. These arguments do not apply to a deposit (first, because the Nifkad -- the who receives the deposit -- is doing the *Mafkid* a favor by watching it for him, and, second, because the Nifkad does not pay for the Shtar that is written), and that is why the presence of a Shtar in the hands of the Mafkid is a greater proof that the deposit was not returned.

(b) The RAMBAN and RASHBA explain that the difference between a loan and a deposit is not that the presence of a Shtar is stronger proof that the deposit was not returned, but that the *Migu* of the Shomer is a weaker Migu than the Migu of the borrower. They explain that in the case of a deposit, the Shtar that the Mafkid presents is unquestionably valid. The only way the Nifkad can exempt himself from paying the amount written in the Shtar is by making a counter-claim that cannot be refuted by the Shtar (i.e. he must claim that the deposit was lost through an Ones). As long as it is possible to make such a claim, the Nifkad has a Migu to exempt himself from paying. In contrast, in the case of a loan, when the lender presents a Shtar that is not Mekuyam, the Shtar is not worth more than any other piece of paper until the Shtar becomes Mekuyam. It is only because the borrower admits that the Shtar was not forged that it becomes valid. Therefore, as long as the borrower has the ability to claim that the Shtar is forged, he not only has a Migu giving credence to his claim, but he also has a "Peh she'Asar" -- that is, the entire proof against the borrower is resting on the borrower's own word (that the Shtar was not forged), and not on the Shtar. Since he is the one who created the evidence against himself, he can also limit the evidence against himself and say that although the Shtar is not forged, it was repaid, and he is believed through a "Peh she'Asar" which is a stronger argument than a Migu.

Tosfos, perhaps, does not accept this answer, because Tosfos holds that even if the Shtar is not Mekuyam, it is considered a valid proof. The Shtar is only invalidated when the borrower claims that it is forged. As long as he makes no such claim, the Shtar is presumed to be valid (see TOSFOS in Kesuvos 19a, DH Modeh). Therefore, the borrower's claim is a Migu (and not a "Peh she'Asar"), just like the claim in the case of the Nifkad.

70b

QUESTION: The Gemara records a dispute regarding a case in which a person presents a Shtar to Yesomim attesting that he gave their father a sum of money, half of which was a loan and half of which was a deposit. Dayanei Golah rule that he may collect the entire amount. Dayanei Eretz Yisrael rule that he may collect only the half that is a loan; he may not collect the half that is a deposit, because Beis Din claims on behalf of the Yesomim that perhaps the half that was a deposit was already returned. Had the father made such a claim, he would have been believed with a Migu that he could have said that the money was lost through an Ones (and he would have been exempt). Beis Din may make on behalf of the Yesomim any claim that the father could have used to exempt himself.

Why do Dayanei Golah not accept this argument? The Gemara explains that Dayanei Golah hold that even the father would not have been believed to say that he returned the deposit, as long as the Mafkid is holding a Shtar. The presence of the Shtar overrides the Migu.

However, even if Dayanei Golah maintain that Beis Din does not claim for the Yesomim that the deposit was returned, they should at least agree that Beis Din may claim for the Yesomim than an Ones occurred to the deposit and therefore they are exempt from returning it! The fact that the Mafkid has a Shtar does not refute the claim that an Ones occurred to the deposit. Since the father would have been believed to say that an Ones happened, the Yesomim should be exempt because Beis Din should claim on their behalf that an Ones happened! (TOSFOS DH Man d'Amar)

ANSWERS:

(a) The BA'AL HA'ME'OR cites those who suggest a simple answer. The Gemara knew all along that had the father been exempt from returning the deposit, he should have told his children before he died that he is exempt from returning it. The father's silence is proof that he still owes money to the Mafkid. However, the Gemara thought that the father would feel a responsibility to tell his children that he is exempt only if an Ones occurred to the deposit, since the Mafkid would not be aware of the Ones and would certainly try to collect the deposit from the Nifkad's children. If the father does not tell his children about the Ones, then they are bound to lose money. If the father *returned* the deposit to the Mafkid, the Gemara thought that the father would not feel a responsibility to tell his children that the deposit was returned, since he would not suspect the Mafkid of willfully collecting the deposit a second time. That is why the Gemara thought that we will claim for the Yesomim only that their father returned the deposit and did not tell them, and not that an Ones occurred to the deposit and their father did not tell them about it.

(According to the RASHBAM (end of 70b), the silence of the father is a factor in determining that the deposit was not repaid only when there is a second element disproving the claim of the Yesomim, such as the presence of a Shtar. According to his approach, the silence of the father can never prove that no Ones occurred, since it is not corroborated by any additional proof that no Ones occurred. The Ba'al ha'Me'or, on the other hand, was apparently learning like Tosfos (in DH d'Im) and not like the Rashbam. However, even according to the logic of Tosfos there, it is not clear that the father would feel responsible to tell his children that an Ones occurred to the deposit, since he assumes that they will make that claim on their own. He will tell his children only that he paid back the deposit, since he assumes that his children will think that it is not repaid if a Shtar is presented to them.)

(b) TOSFOS (DH Man d'Amar) and the Ba'al ha'Me'or explain that we do not make for Yesomim a claim that is unusual. It is not expected for a deposit to be lost through an Ones, and therefore we do not claim that it was Ne'enas. On the other hand, it is expected that a deposit be returned, and therefore we claim that it was returned.

The RAMBAN (in Milchamos) questions this approach (and the previous approach). If the Yesomim cannot claim that the object was Ne'enas, then how can they claim that the object was returned? A person is believed to say that a deposit was returned only with a Migu that he could have said that it was Ne'enas, and the Yesomim do not have that Migu, since they are not believed to say that it was Ne'enas!

Tosfos addresses this question and explains that it does not make a difference whether or not the Yesomim themselves have a Migu. As long as the *father* would have had a Migu with such a claim, we may present that claim for the Yesomim; we may present for the Yesomim any normal claim that the father could have presented.

It seems that the Ramban and Tosfos are arguing about how a claim can be presented by Beis Din on behalf of Yesomim. According to Tosfos, Beis Din says that "perhaps the father would have made this claim." According to the Ramban, Beis Din says that "we shall treat the uncertain claim that the Yesomim are making, saying that it might be true, as if they are saying that that they *know* that it is true." Since, ultimately, the claim is coming from the Yesomim, if they have no Migu themselves, then their uncertain claim cannot be made into a claim of certainty.

The NETZIV points out that the Rashbam has another answer to the question posed by the Ramban on Tosfos. According to the Rashbam (end of 70a), the Nifkad is believed to say that the object was returned without having to rely on a Migu. Rather, we say that perhaps the Nifkad did not reclaim the Shtar upon payment, because he knew that the Mafkid would not be able to collect a second time with the Shtar since he could always exempt himself by saying Ne'enas (and swearing that the object was lost through an Ones).

(c) The RAMBAN himself (in Milchamos) does not accept the previous answers. He explains that according to Dayanei Eretz Yisrael, the Yesomim are exempt from returning the deposit because they can say either that they returned it, *or* that it was Ne'enas. This is also the opinion of the RIF (Bava Metzia 62a) and the RASHBA (Bava Basra 33a). Why, according to the Dayanei Golah, do we not present, on behalf of the Yesomim, the claim that the deposit was Ne'enas to exempt the Yesomim from paying? The Ramban answers that the same Chazakah (the fact that the Mafkid is holding the Shtar) that prevents the Yesomim from claiming that the deposit was returned also prevents the Yesomim from claiming that an Ones occurred. Had an Ones occurred during the lifetime of the father, the father certainly would have told the Mafkid about the Ones immediately and reclaimed the Shtar. Since he did not reclaim the Shtar before his death, it is clear that the deposit was not lost through an Ones before his death, just as it is clear that the deposit was not returned before his death.

(d) The RA'AVAD (cited by the Rashba and the Ba'al ha'Me'or) explains that our Sugya is discussing *adult* Yesomim whose admission can obligate them to pay. The Yesomim are presenting a claim of certainty ("Ta'anis Bari") that their father told them that he returned the deposit. By claiming that the deposit was returned, it is as if they are admitting that the object was *not* lost through an Ones. Consequently, Beis Din cannot claim for them that the object was Ne'enas.

The Gemara concludes that even if the father is believed to claim that he returned the deposit, the Yesomim are not believed to say that their father *told* them that he returned the deposit. Had he really returned the deposit, the father would have told the children *in front of witnesses* that it was returned (and not in private).

The Rashbam might be alluding to this answer (in DH Shtar Kis) when he suggests, as an alternate explanation to the case of our Gemara, that the Yesomim are presenting a Ta'anas Bari that the object was returned.