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1) CONCERN FOR FRAUDULENT COLLECTION

(a) Question (Mishnah): We may write a document for the borrower in the lender's absence;

1. Why is this l'Chatchilah - perhaps he will not lend the money on the date of the document, and he will improperly take land from people who bought before the loan!

(b) Answer #1 (Rav Asi): The Mishnah speaks of Hakna'ah documents, by which the borrower puts a lien on his land immediately (so the collection is proper).

1. Question: The Mishnah says, if it has Achrayus, the finder should not return it; we established this when Shimon admits that he owes, lest the loan was given later than the date on the document, and Reuven will collect illegitimately from property sold before the loan;

i. If it is a Hakna'ah document, the collection is proper;
ii. If it is not a Hakna'ah document, it would only be written in front of the lender, surely the loan was the same day!

2. Answer (Rav Asi): The law is, if it is not a Hakna'ah document, it should only be written in front of the lender;

i. Since this document was lost, we are concerned that it was written (improperly) in the lender's absence.

(c) Answer #2 (Abaye): Even by documents that are not Hakna'ah, when witnesses sign, the lender immediately acquires (a lien on the borrower's land).

1. Abaye did not learn as Rav Asi, because of this question - since documents that are not Hakna'ah are only written in front of the lender, we should not be concerned that the money was not given on the date!

(d) Question (against Abaye - Mishnah): One who finds a Get of divorce or freedom, a documents of a gift from a dying man or a receipt, he should not return it, perhaps they were written and never given.

1. Why should this matter? When witnesses sign, the lender acquires immediately!

(e) Answer: He only acquires if the document is ultimately given.
(f) Question: The Mishnah says, if it has Achrayus, we do not return it; we established this when Shimon admits, lest the loan was given after the date (and Reuven will collect illegitimately).
(g) Answer #1 (Rav Asi - above): This is by documents that are not Hakna'ah.

1. Abaye says that when witnesses sign, the lender acquires immediately - how can he answer?

(h) Answer #2 (Abaye): We are concerned that the loan was already repaid; the borrower admits because he is scheming to help the lender illegitimately collect from buyers (and share the profit).

(a) Question: Shmuel is not concerned for repayment and scheming - how can he answer?
(b) Answer #1: If he learns as Rav Asi, he can answer as Rav Asi.

1. But if he learns as Abaye, how he can answer?

(c) Answer #2: The Mishnah is when Shimon does not admit.
(d) Question: If so, when there is no Achrayus, why do we return the document?

1. Granted, Reuven cannot collect from land that Shimon sold - but he can collect from unsold property!

(e) Answer: Shmuel says (as he said elsewhere) that according to R. Meir, a document without Achrayus cannot be used to collect at all.
(f) Question: If it cannot be used for collection, why return it?
(g) Answer (Rav Noson bar Oshiya): The lender can use the parchment to plug up a bottle.
(h) Question: Why not return it to the borrower?
(i) Answer: The borrower claims that the lender forged the document.

3) THE ARGUMENT IN THE MISHNAH

(a) (R. Elazar): The argument in the Mishnah is when Shimon does not admit; R. Meir says that a document without Achrayus cannot be used to collect at all, Chachamim hold that in can be used to collect from unsold property.

1. When Shimon admits, all agree that we return it - we are not concerned for repayment and scheming.

(b) (R. Yochanan): When Shimon admits, they argue - R. Meir agrees that a document without Achrayus can be used to collect from unsold property; Chachamim hold that in can be used to collect even sold property.

1. When Shimon does not admit, all agree that we do not return it - we are concerned for repayment.

(c) A Beraisa supports R. Yochanan, refutes R. Elazar in 1 point, and refutes Shmuel in 2 points.
(d) (Beraisa - R. Meir): Levi found a document with Achrayus. Even though the lender and borrower agree, he may not return it to either;

1. If the document has no Achrayus - if the borrower agrees, Levi returns it to the lender; if not, he may not return it to either.
2. This is because documents with Achrayus can be used to collect even sold property, documents without Achrayus can be used to collect from unsold property.
3. Chachamim say, either can be used to collect even sold property.
4. This refutes R. Elazar, who said that R. Meir says that a document without Achrayus cannot be used to collect at all;

i. Also - R. Elazar said that neither Tana is concerned for scheming, but the Beraisa says that (we do not return a document with Achrayus, even when both admit, implying that) we are concerned!

(e) Question: R. Elazar is refuted on 2 points (above, we said he is refuted on only 1)!
(f) Answer: Both stem from 1 source.

1. Because he says that they argue when Shimon does not admit, he explained thusly.