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Shabbat Parashat Behar Bechukotai | 5769

Hemdat Hadaf Hayomi: Reusing a Shtar



Baba Metziah 15-21

 

This week in the Daf Hayomi (17a), the Gemara states that one cannot reuse a shtar, whose debt was already paid off, for a new loan. The Gemara explains that if the new loan is being given at a date later then the one written in the shtar, it is obvious that one cannot reuse the shtar. The problem with this is, as we explained last week, a loan with a shtar creates a lien on the real-estate of the borrower, and if he sells land, the lender can collect it from the buyer to pay off the debt. Therefore, if the date in the shtar is earlier than the actual date of the loan, there is a concern that the borrower will sell land between the date of the shtar and the date of the loan, in which case in truth the land is not liened to the lender, since it was sold before the loan took place, but the lender will be able to unjustly collect his debt from the buyer, because the shtar is dated to before the sale took place. Therefore, if one wants to reuse a shtar at a later date it is clear that he cannot do so. However, even if the date is the same, such as a case where a person took a loan with a shtar, and paid off the loan that day, and later that same day he wishes to take an identical loan and reuse the shtar, the Gemara says that he cannot do so, since the lien created by the shtar has already been nullified.

The Poskim disagree as to what exactly the Gemara means. According to the S'mah (Choshen Mishpat 48, 1), a shtar has two functions.  The first is to be a proof for the loan.  The second is to create a lien on the real-estate of the borrower. Therefore, claims the S'mah, when the Gemara stated that one cannot reuse a shtar, since the lien was nullified, it was only referring to the second function of the shtar, that the shtar cannot create a new lien since the lien it created was nullified. However, the fact that the lender is in possession of a shtar is still proof of the debt, since, if the loan was paid off, the shtar would have been returned to the borrower, and therefore, a shtar can be reused as proof for the loan. Thus, a lender in possession of a reused shtar, would not be able to collect his debt from lands the borrower sold, but he can collect his debt from assets still in possession of the borrower.

The Shach (ibid, 2) disagrees. He claims that we cannot separate between the different functions of the shtar. If the shtar's power to create a lien was cancelled, it cannot function as proof either, and the lender cannot use it to collect his debt even from assets still in possession of the borrower.

The Poskim also discuss whether one can reuse a note signed by the borrower himself (=k'tav yado). The Halacha distinguishes between a shtar, which two witnesses sign upon, thereby creating a lien, and k'tav yado, which only the borrower is signed on, and although it can be used as proof for the loan, it does not create a lien. According to the S'mah (ibid), it is clear that one can reuse a k'tav yado, since even regarding a shtar, the only problem was creating a new lien, but, by a k'tav yado, where there is no lien anyway, there is no problem with reusing it. The Shach (ibid), although he disagrees with the S'mah regarding a shtar and claims that it cannot be reused even only as proof, agrees that a k'tav yado can be reused. The reasoning is that a shtar, since it normally creates a lien, if its power to create a lien is nullified, becomes completely nullified. However, since a k'tav yado never creates a lien and is only used as proof, no portion of it was nullified and thus it is valid. However, the Bach (ibid 1) and Ketzot Hachoshen (ibid 3) disagree and claim that even a k'tav yado cannot be reused. Their reasoning is that, since the signatures, those of the witnesses for a shtar and that of the borrower for a k'tav yado, were signed on a different loan which was already paid off, they are not valid and cannot be used as proof of a new loan.   

 

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Dedication

 

This edition of Hemdat Yamim is dedicated to the memory of

Leiser Presser ben R'Aharon Yitzhak and Bracha

on the occasion of his yahrzeit, 24 Iyar,

and members of his family who perished in the shoah Al Kiddush Hashem.

As well as

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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