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Shabbat Parashat Emor | 5769

Hemdat Hadaf Hayomi: Writing a Shtar for the Borrower without the Presence of the Lender



 

Baba Metzia 8-12

 

This week in the Daf Yomi, the Gemara (12b) deals with the Mishna from the end of Baba Batra (167b) that states that "one may write a shtar (banknote) for the borrower without the presence of the lender." The fundamental principle behind this ruling is that it is possible to make one sided monetary actions, as long as it doesn't affect anyone else negatively. Therefore, it is possible to write a shtar stating that the borrower borrowed a certain amount of money from the lender, without the presence of the lender, and even without knowledge that the lender actually lent the money or is intending to. This can be done, since this doesn't affect the lender in a negative fashion, but rather, it is to his benefit, since the borrower is now obligated to pay him back.

The Gemara questions this ruling, since there still might be a negative outcome to writing the shtar without the presence of the lender, as it is possible that the shtar will be written in the month of Tishrei, but the loan will not take place until Nissan, and only then will the borrower give the lender the shtar.  When a loan is given with a shtar, all real-estate owned by the borrower becomes liened to the lender. Thus, if the borrower sells his real-estate, the lender can collect his debt from the buyers who bought the real-estate. The result is that, in our case, if the borrower sold land between Tishrei and Nissan, in truth this land is not liened to the lender, since the loan only took place in Nissan, but he will be able to unjustly collect his debt from the buyer, since the shtar is dated to Tishrei.

There are two opinions in the Gemara as to how to resolve this problem. According to Rav Asi, the shtar can be written without the presence of the lender only if a kinyan was done, in which case the borrower immediately becomes in debt to the lender, independent of when the loan actually takes place and when the lender receives the shtar.  According to Abayey, even without a kinyan, when the shtar is given over to the lender, it becomes effective retroactively from when it was written. Each solution creates a situation where the lands are liened from when the shtar was written, even though the loan took place at a later date. The difference is that, according to Abayey, this occurs with any kind of shtar, while according to Rav Asi, this is only true if a kinyan accompanied the shtar.

The Rishonim disagree as to how to rule in this dispute. The Rif (6a) and Rambam (Malveh Veloveh 23, 5) rule according to Rav Asi, while the Rosh (1, 49) rules according to Abayey. The Shulchan Aruch (39, 13) rules in accordance with the Rif and the Rambam, while the Shach (ibid, 39) writes that in a situation where the Rosh's opinion will be in favor of the one holding the money, we will not be able to obligate him to pay.

Another issue the Rishonim raise, which is also derived from this Mishna, is whether a person who agreed to lend money, and the borrower, on the basis of this agreement, wrote a shtar, is now obligated to lend the money. According to the Ramban (quoted in Sefer Haterumot 48, 1, 1) since the borrower wrote a shtar and liened his real-estate to the lender, the lender is obligated to lend the amount he agreed upon. According to the Rashba (Responsa 1, 1054), the lender may go back on the agreement and the shtar does not obligate him. The Rashba brings this Mishna as proof, for if the writing of the shtar obligates one to lend, how can we write a shtar without the presence of the lender and obligate him to the lend the money?

The R"I Migash (Baba Batra 167b) writes that, indeed, we can write without the presence of the lender only if the borrower admitted that he already received the loan. The Ramban (ibid) answers that the borrower will not be able to obligate the lender to lend, since we will require proof that the shtar was written with the lender's consent.

The Shulchan Aruch (39, 17) rules in accordance with the opinion of the Rashba, that the lender may go back on his agreement and not lend. The Poskim (Sma'a 46, and more) write that if the lender instructed the borrower to write the shtar, and the borrower had expenses in writing the shtar, the lender, who reneged on the agreement, must compensate him.    

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Dedication

This edition of Hemdat Yamim is dedicated to the memory of

R ' Meir ben Yechezkel Shraga  Brachfeld

o.b.m

Hemdat Yamim is endowed by
Les & Ethel Sutker of Chicago, Illinois in loving memory of
Max and Mary Sutker

and Louis and Lillian Klein, z”l.

 

 

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