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Introduction to Rosh Hashanah

Rosh Hashanah 2

1) THE ROSH HASHANAH FOR KINGS AND PRE-DATED DEEDS OF DEBT

QUESTION: The Mishnah gives a list of the different days that serve as the new year for different matters. The first Rosh Hashanah that is mentioned is the first day of Nisan, the Rosh Hashanah for Melachim, kings. The Gemara asks "l'Melachim l'Mai Hilchasa" -- what practical ramification is there for a Rosh Hashanah of kings?

The Gemara seems to be asking simply what practical application does the Rosh Hashanah for kings have. Rashi, however, gives a different explanation of the Gemara's question. Rashi says that the Gemara is asking why this day in particular was chosen to be the Rosh Hashanah for kings, instead of simply using the day on which each king came to power. According to Rashi's explanation, the Gemara knows what the practical ramifications are to having a Rosh Hashanah for kings, but it is merely asking why a particular day, the first of Nisan, was chosen for that Rosh Hashanah.

Why does Rashi not explain the Gemara's question as it sounds -- i.e. what difference does it make that there is a Rosh Hashanah for kings?

ANSWER: The RITVA explains Rashi. Had the Gemara been asking that question (what difference does it make to have a Rosh Hashanah for kings), then when it answered "for the sake of Shetaros" it would not have continued to say, "As we have learned in a Mishnah (in Shevi'is) that pre-dated deeds of debt (Shetarei Chov ha'Mukdamim) are not valid, and post-dated deeds of debt (ha'Me'ucharim) are valid." It should just have mentioned that the practical application of a Rosh Hashanah for kings is for the sake of dating Shetaros, without going into what types of Shetaros are valid and what types are not valid. We would have assumed that it meant a simple case of two people with two Shetaros, one dated with an earlier month in the king's reign than the other, who are both trying to collect their debt from buyers (Lekuchos) who purchased property with a lien on it from the debtor. The one with the earlier date on it is entitled to collect from the Lekuchos first. (This is indeed the way the Yerushalmi, and Rabeinu Chananel explain the importance of king's years in our Mishnah.) Alternatively, the significance of a Shtar marked with an earlier year in the king's reign is in determining whether the loan described in the Shtar occurred before or after a buyer purchased land from the debtor. If the loan occurred before the purchase, the land would have a lien on it and could be collected as payment for the loan, but not if the loan occurred after the purchase.

Since the Gemara did not simply answer "for Shetaros," but added a description of what Shtar is not valid and what Shtar is valid, it must be that the Gemara was asking a different question. It was not asking simply what practical difference does it make to have a Rosh Hashanah for kings. The Gemara knew all along that a Rosh Hashanah for kings has legal ramifications for dating Shetaros. (Indeed, in the Mishnah, Rashi gave that as the reason why there is a Rosh Hashanah for kings, implying that it was known even before the Gemara discusses it that the Rosh Hashanah for kings is necessary for Shetaros.) The Gemara, rather, is asking *why* did the Chachamim have to make a special enactment to count the years of kings from the month of Nisan. (RITVA)

QUESTION: But still, that just moves our point of reference from Rashi to the Gemara. Why did the Gemara have to introduce the concept of pre-dated Shetaros to answer this question? Why could the Gemara not answer its question by saying that the institution of counting king's years from the beginning of Nisan was necessary to avoid confusion as to who should collect from Lekuchos when two -- or even one -- *valid* and not pre-dated Shetaros are presented to the court!

ANSWERS:

(a) According to Rashi, the Gemara's logic may be explained as follows. The Rabanan were not concerned that people would collect from Lekuchos improperly based on a Shtar with an unclear date. To prevent such fraud, the person with the earlier Shtar, or with the purchase that predated the loan, could simply write the date more clearly (for instance, by specifying *in the Shtar* which month the king began his reign). The Chachamim do not have to get involved since anybody could thwart such fraud on his own. Rather, the problem that the Chachamim felt responsible to prevent is the case that Rashi describes, when witnesses make a statement which might mean that the Shtar is pre-dated but which might also mean that the Shtar is valid. In such a case, Beis Din might make a mistake about what the witnesses are saying and rule that the Shtar is not valid when it actually is valid. In such a situation, the person who loaned the money will not be to blame for not being more specific in the Shtar, and causing confusion to Beis Din, since he could not have had any idea that he would be causing confusion. After all, he actually *post-dated* the Shtar (Shtar Me'uchar), writing it months after a loan had taken place in front of the very witnesses who had seen a loan take place months earlier. The person who loaned the money had no reason to take into account the possibility that *Beis Din* will misinterpret the witnesses testimony. Therefore, the Chachamim felt a need to clear up the case by establishing one day by which to count the years of every king, so that Beis Din will not invalidate any Shetaros by mistake. (M. Kornfeld)

(This answers another question Tosfos poses on Rashi as well. Tosfos (DH l'Shetaros) asks why Rashi picked a case where Beis Din will mistakenly invalidate a valid Shtar that was post-dated (Me'uchar). He should have said that the Takanah was made to prevent Beis Din from mistakenly collecting with a Shtar that is actually not valid, and pre-dated (Mukdam). According to what we have said, though, that would not be Beis Din's worry, since a pre-dated Shtar is only problematic if a person *collects* with it from Lekuchos. But in such a case, it was the negligence on the part of the Lekuchos that caused their own loss, since they should have made the date of their purchase more clear, by indicating in their purchase the exact month in which the king came to power.)

(b) TOSFOS (DH l'Shetaros) explains that the Chachamim were not afraid that the *Beis Din* might forget when the king came to power. Therefore, when Shetaros of different dates that are *not* pre-dated are presented in court there will never be reason for confusion over which was written first. Rather, the reason the Chachamim instituted to count king's years from the beginning of Nisan was because the *scribe*, who writes the date in the Shtar, may forget which day the king came to power and write the wrong year of the king's reign in the Shtar, inadvertently *pre-dating* it.

Although the scribe writes Shetaros all year round, and certainly will make it his business to know the date of the king's appointment as part of his professional career, nevertheless he might think, one year from the king's appointment, that the king was appointed just *one day* later than he actually was. For instance, if the king was appointed on the first of Adar, on the following first of Adar he might remember incorrectly that the king was appointed on the *second* of Adar, and write "first of Adar, *first* year of the king," inadvertently pre-dating the Shtar by an entire year. Now that the Chachamim instituted that *all* kings' years begin at the first of Nisan, there will be no room for the scribe to make such a mistake.

(That is to say, what Tosfos is afraid of is exactly the opposite of what Rashi is afraid of. Tosfos is afraid that the *scribe*, at the time he writes the Shtar, will make a mistake. Beis Din, at the time the Shtar is presented to them, will not. Rashi is afraid that the Beis Din might be presented with the Shtar years after the death of the king, and by that time the date of the king's appointment will have been completely forgotten. *Beis Din* might not remember the correct date of the king's appointment. On the other hand the *scribe*, who is writing the Shtar at the time that the king is still alive, will have no reason at all to mistake the true date of the Shtar.)

(c) As we mentioned above, RABEINU CHANANEL, in contrast to Rashi, explains that the Gemara's answer is "Lav Davka." When it says that we need a Rosh Hashanah for kings in order to know what Shtar is pre-dated, it also means that we need a Rosh Hashanah for kings in order to know which Shtar collects first when two people have Shetaros from one debtor and are trying to collect from Lekuchos (the Yerushalmi here also says that this is the reason why we need a Rosh Hashanah for kings; see end of Tosfos DH l'Shetaros). Why, then, does the Gemara bring the Mishnah that says that a pre-dated Shtar is Pasul?

The BA'AL HA'ME'OR says that besides answering the question of why we need a Rosh Hashanah for kings, the Gemara is teaching an additional Chidush. We might have thought that, b'Di'eved, if one wrote the date in the Shtar counting from the time that the king came to power, the Shtar is nevertheless valid. The Gemara therefore teaches that even b'Di'eved such a Shtar is Pasul, because it is a pre-dated Shtar.

The RA'AVAD answers that when the Gemara mentions that a pre-dated Shtar is Pasul, it does not mean that the reason why we need a Rosh Hashanah for kings is specifically to prevent the problem of pre-dated Shetaros. The Gemara is including all cases of collecting with Shetaros based on the precedence of the date written in the Shtar, including the case of two Shetaros being collected from the Lekuchos of one debtor.

QUESTION: The Gemara says that a pre-dated deed of debt (Shtar Mukdam) is not valid, because it indicates that a loan took place at an earlier time than it actually did, which can lead to unlawful collection of property that others bought from the debtor after the date written in the Shtar but before the loan actually took place.

How is it possible to ever prove that a Shtar is Mukdam? We know that once witnesses sign a Shtar, it is as if they have given testimony in Beis Din (Kesuvos 18b), and thus their signature in a Shtar is tantamount to testimony in Beis Din that they witnessed all of the facts in the Shtar, including the date written therein. Consequently, other witnesses are not believed to contradict them and say that the Shtar was signed on a date earlier than the one written in the Shtar. At most, it would be a situation of "Trei u'Trei" (two against two), in which case the Shtar would *not* be Pasul (Kesuvos 20a, see Rashi there). Likewise, if the same witnesses who signed the Shtar later testify that they signed it untruthfully and that it was actually written earlier than the date therein, they are not believed, because "a person is not believed to make himself an evildoer" ("Ein Adam Mesim Atzmo Rasha"), which is what the witnesses are doing when they say that they lied by signing a pre-dated Shtar (Kesuvos 18b). Furthermore, the Gemara (ibid.) explains that if the signatures on the Shtar had already been authenticated ("Mekuyam"), there is the additional problem that the witnesses, by saying the Shtar is Mukdam, are retracting their original testimony, which they do not have the power to do ("Keivan sh'Higid, Shuv Eino Chozer u'Magid"). This is again based on the principle that all aspects of the writing of the Shtar are assumed to have been done properly and lawfully.

How, then, can we ever have a case of a Shtar that is proven to be a Shtar Mukdam and is thus Pasul?

ANSWERS:

(a) RASHI (DH Shtarei Chov) was bothered by this question. He explains that it is possible for witnesses to sign a Shtar that is pre-dated, without doing anything wrong whatsoever. In such a case, the witnesses would be believed to say that the Shtar is pre-dated because they did not do anything wrong by signing it and are not declaring themselves to be Resha'im. Since there was nothing improper or unlawful done with the writing of the Shtar, they are believed to say that the Shtar is pre-dated. What, though, is this case?

Says Rashi, it is permitted to write a Shtar for a borrower even when the lender is not present (Bava Basra 167b -- since the Shtar is solely to the detriment of the borrower and to the benefit of the lender) and the loan has not yet actually occurred. In such a case it is up to the borrower to borrow the money and give the Shtar to the lender right away, and not at a later date. However, the borrower might not borrow the money and give the Shtar to the lender until some later date, at which time the Shtar will be a Shtar Mukdam. In such a case the witnesses did nothing wrong. Therefore, the witnesses (or even other witnesses, RITVA) are believed to say that the date on the Shtar is not the date on which the loan occurred, which they know because the borrower and lender admitted to them that the loan occurred on a later date (RASHBA).

The Rishonim (see TOSFOS DH l'Shetaros) question Rashi's explanation from the Gemara in Bava Metzia (13a) which concludes that one *cannot* write a Shtar for a borrower without seeing the loan take place, because we are afraid that he will give it to the lender only at a later date, in which case it will be a Shtar Mukdam. Indeed, Rashi's words are puzzling; how can we permit writing such a Shtar l'Chatchilah? Would it not put the Lekuchos (people who purchased land from the borrower, which may or may not have a lien on it) at the mercy of the borrower, undermining the entire institution of dating a Shtar?

Perhaps Rashi's words here are based on what he wrote earlier (in the beginning of the Dibur) regarding Shtar Mukdam. According to Rashi, a Shtar Mukdam is not valid only insofar as collecting land with a lien from Lekuchos. It can, however, serve as proof in court that a loan took place in order to collect the loan from the borrower himself, and not the Lekuchos. (TOSFOS DH Shetarei and other Rishonim write that this is incorrect; such a Shtar cannot even serve as a proof that a loan took place.) According to Rashi, then, the Gemara in Bava Metzia simply means that one cannot collect from *Lekuchos* when the Shtar does not state explicitly that the witnesses saw the loan take place. The Shtar *can* be used as a proof that the loan took place, though (to collect it in full from the borrower himself). If so, the Mishnah which states that pre-dated Shetaros are Pasul may be applied even when there is *no* testimony that the Shtar is predated. It simply means that any Shtar in which it is not stated that the witnesses saw the loan take place (e.g. it was written for a borrower not in the presence of the lender) cannot be used to collect from Lekuchos. Not only are the witnesses believed if they testify that such a Shtar is pre-dated, it is even *assumed*, without any testimony, that it was pre-dated. This is why Rashi writes that lacking definitive testimony that it is *not* Mukdam, the Shtar will be judged by Beis Din as Mukdam (another point with which Tosfos, ibid., contends). (M. Kornfeld)

(b) The BA'AL HA'ME'OR answers, based on his understanding of the Yerushalmi (Shevi'is 10:3), that although normally witnesses are not believed to say that they acted wrongly, regarding a mistake that is commonly made the witnesses *are* believed to say that they made such a mistake. In such a case it is not considered as though they are making themselves Resha'im, nor is it considered as if they are attempting to retract their original testimony.

What is the common mistake that they made in this case? It is common for a person to think that he is allowed to sign a Shtar that is pre-dated when the loan was actually made on the earlier date. This is the mistake that the witnesses made. Alternatively, they thought that it is permitted to write a Shtar for a borrower even when the lender is not present and the loan is not taking place at that time. (Rashi in fact permits this, as stated above.)

The RITVA and RASHBA and RAMBAN (cited by the Chidushei ha'Ran) explain that this is true only in a situation in which the signatures in the Shtar have not yet been authenticated ("Ein Ksav Yadam Yotzei mi'Makom Acher") and the witnesses testify that the signatures are theirs but that they made a mistake and signed a Shtar Mukdam. Otherwise it would be considered "Chozer u'Magid." The CHIDUSHEI HA'RAN says that from the Ba'al ha'Me'or it would seem that the same applies even when the signatures in the Shtar *are* authenticated by others who recognize the signatures ("Ksav Yadam Yotzei m'Makom Acher"). Even so, it is still not considered as though they are being "Chozer u'Magid" and retracting their original testimony. (However, if that is the Me'or's intention it would give rise to a paradoxical conclusion. On one hand, if *others* say that the first set of witnesses made a mistake, it is clear from the Me'or that they are not believed, since they are "contradicting" what is written in the Shtar. But if the witnesses themselves say that they made the mistake, then they are believed and they are *not* considered to be contradicting what is written in the Shtar.)

(c) The RITVA offers a simple answer. A Shtar can be proven pre-dated if witnesses testify that the lender and borrower involved in transaction *admitted* before them that the Shtar was pre-dated, and that the loan only took place later. Since there is "Hoda'as Ba'al Din" -- the claimant himself has admitted that the Shtar was invalid for collecting from these Lekuchos - - no number of witnesses will be able to give the claimant title to the property of the Lekuchos.

(Although this will invalidate the Shtar for *collecting from Lekuchos*, the lender will still have clear proof of the existence of the loan -- albeit at a later date -- based on the testimony of the witnesses. There is room for discussion here as to whether the loan can be collected from Lekuchos even *against* the lender's admission that the loan took place later. The borrower, by writing and giving the lender a Shtar at an earlier date, obligated himself through Hoda'ah to pay up *whether or not* he took money at the time. The later loan would then create a *second* obligation, and would not be the source for the alleged obligation described in the Shtar.)

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