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Bava Metzia, 16

16b

QUESTION: The Gemara says that when the Mishnah later (20a) states that if one finds any document authorized by Beis Din he may return it to the bearer, it is referring to a Shtar "Chaltasa" and a Shtar "Adrachta," which are documents giving permission for a creditor to seize the possessions of a debtor. We are not concerned that the creditor had already collected the property of the debtor, and that the debtor redeemed his property by paying money to the creditor, and now the creditor is using the Shtar again to collect from the debtor unlawfully. The reason we are not concerned for this is because had the debtor redeemed his property, then he either should have demanded that the Shtar Adrachta be ripped up, or that the creditor write for him a normal Shtar Mechirah (bill of sale) for the land that the debtor was redeeming. Since the debtor did neither of these two things, it is he who caused the loss to himself. In contrast, a Shtar Halva'ah (deed of loan) that was found may not be returned to the lender, because we are afraid that the borrower paid back the debt already, and he was unable to get back the Shtar and rip it up, either because the lender told him that he would give it back to him the next day ("Ishtamutei"), or because the lender was holding on to the Shtar until he received reimbursement from the borrower for the scribe's fees.

Why are we afraid that the lender eludes giving back the Shtar, by saying that he will give it to the borrower tomorrow, only in the case of a loan? Even in the case of a Shtar Adrachta, when the borrower demands the return of the Shtar, the lender can push him off and say that he will give it to him tomorrow, and thus, since it was not the borrower's fault, we must be concerned that the property was redeemed already and we should not give to the lender the Shtar Adrachta that was found!

In addition, if, in the case of a Shtar Adrachta, we say that the borrower caused the loss to himself by not demanding that the lender write to him a new Shtar upon redeeming the land from him, then so, too, in the case of a loan we should say that the borrower caused the loss to himself by not demanding that the lender write a receipt for him! (RISHONIM)

ANSWERS:

(a) The RAN answers that we do not say that the borrower, when he repaid the loan, should have demanded either that the Shtar be returned to him and torn up or that the lender write for him a receipt. This is because we assume that the borrower would prefer to wait for the lender to return the Shtar to him and rip it up than to receive a receipt, because if he receives a receipt he will be bound to guard it from rodents. Hence, the borrower will agree to wait for the lender to return to him the Shtar. In contrast, in the case of a Shtar Adrachta, having the Shtar returned to him is no better than having a new Shtar Mechirah written, because in either case he is going to have to guard the Shtar. If he receives the Shtar Adrachta in return and rips it up, he will still need to keep the fragments of it. If he does not keep it, the lender will bring witnesses to testify that the land was legally confiscated from the borrower and became the property of the lender, and the borrower will have to give it back. Therefore, he must keep the torn Shtar Adrachta as proof that he redeemed the land from the lender. Hence, the Gemara says that if he neither demanded that the Shtar Adrachta be returned to him, nor demanded that a new Shtar Mechirah be written, then it is he who caused a loss to himself.

(b) The MAHARSHAL answers that in the case of a Shtar Adrachta, it is not possible that the lender would be able to evade giving back the Shtar. Evading the return of the Shtar is a possibility only in the case of a Shtar Halva'ah. The reason is because their is a relationship of trust between the borrower and the lender, so that when the borrower pays back the loan, he trusts that the lender will return the Shtar to him later. In contrast, when a borrower has refused to pay back the loan and the lender has been forced to confiscate his property, there obviously is no longer any relationship of trust between them, and thus the borrower certainly will not give money to the lender to redeem his land without receiving the Shtar Adrachta in return; he will not trust the lender to give him the Shtar later.