Commentary for Bava Metzia 14:14
Tosafot on Bava Metzia
Why is [the law] different [if it fell into] the hands of a judge? Tosfos is unclear about the meaning of the Gemara’s question and wishes to clarify it for us. Sometimes we can understand the questioner’s intent from the response of the responder. The true meaning of what the question meant to ask depends very much on whether a certain phrase appears in the Gemara’s answer. In some versions of the Gemara’s answer we find an explanatory phrase “והיכי דמי - What does this mean? דכתב ביה הנפק - The document had been notarized.” In other versions of the answer we do not find this phrase. Tosfos offers two explanations of the Gemara’s question, which depend on whether this phrase appears in the answer or not.
According to the manuscripts that have in the Gemara’s response the text: “and what does the phrase [it fell into the hands of a judge] mean? That a notarization was written [on the document].”
We can now understand that when the questioner asked his question, he did not know that the phrase “it fell into the hands of a judge” means that there was a notarization. Obviously, since the Gemara needed to clarify this point, the questioner must have been unaware of this meaning when he asked the question. Rather, he thought that the meaning of this phrase is that a judge found [the loan document], and that is why he asks: Why is a judge who finds a document different than any other person who might have found the document?
But according to the manuscripts that do not have the text after [the question]: “and what does [it fell into the hands of a judge] mean? That there was a notarization written [on the document]”, since the Gemara did not need to explain the meaning of the phrase, [the questioner] correctly knew at this point in the dialogue that the phrase “it fell into the hands of a judge” means that there was notarization written [on the document].
If so what was his question? His question was: Why is a document that has been notarized different that the principals can never retrieve it from the finder as opposed to a document that has not been notarized? Certainly, it follows that if there was no notarization written [in the document], the principals should certainly not ever be allowed to retrieve it from the finder because there is a concern that although [the borrower] wrote it with the intent of borrowing, perhaps the loan never happened?
The emphasis of the Gemara’s question is on the implication that the document cannot be retrieved from the finder because it has been notarized. If anything, notarization makes the document healthier and gives us all the more reason to return the document to the principals. [The Gemara’s] answer is that the Baraisa statement is in the context of - it need not be said. In other words: It need not be said that if there was no notarization the document should never be returned to the principals, but even if it was already notarized, it may never be returned to them.
According to the manuscripts that have in the Gemara’s response the text: “and what does the phrase [it fell into the hands of a judge] mean? That a notarization was written [on the document].”
We can now understand that when the questioner asked his question, he did not know that the phrase “it fell into the hands of a judge” means that there was a notarization. Obviously, since the Gemara needed to clarify this point, the questioner must have been unaware of this meaning when he asked the question. Rather, he thought that the meaning of this phrase is that a judge found [the loan document], and that is why he asks: Why is a judge who finds a document different than any other person who might have found the document?
But according to the manuscripts that do not have the text after [the question]: “and what does [it fell into the hands of a judge] mean? That there was a notarization written [on the document]”, since the Gemara did not need to explain the meaning of the phrase, [the questioner] correctly knew at this point in the dialogue that the phrase “it fell into the hands of a judge” means that there was notarization written [on the document].
If so what was his question? His question was: Why is a document that has been notarized different that the principals can never retrieve it from the finder as opposed to a document that has not been notarized? Certainly, it follows that if there was no notarization written [in the document], the principals should certainly not ever be allowed to retrieve it from the finder because there is a concern that although [the borrower] wrote it with the intent of borrowing, perhaps the loan never happened?
The emphasis of the Gemara’s question is on the implication that the document cannot be retrieved from the finder because it has been notarized. If anything, notarization makes the document healthier and gives us all the more reason to return the document to the principals. [The Gemara’s] answer is that the Baraisa statement is in the context of - it need not be said. In other words: It need not be said that if there was no notarization the document should never be returned to the principals, but even if it was already notarized, it may never be returned to them.
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Tosafot on Bava Metzia
If the husband concedes [that he has not yet paid the Kesubah, the finder] should return [the Kesubah document] to the wife. Why is it necessary for the Baraisa to teach us that when the husband admits that he has not yet paid the Kesubah, the Kesubah document is returned to his wife? It seems unnecessary, since he is telling us he is still obligated to pay the Kesubah. Tosfos will explain the possible concerns that we may have about the validity of the document even when the husband admits that he still owes the Kesubah.
We must keep in mind that we should be very concerned about the loss of a document. It raises questions in our minds.1See Rashi (12b) ד'ה הנה ריעי. If in fact it was a valid document, how did it happen that the wife lost it? Most people are extremely careful about caring for their documents, especially those that represent a considerable sum. The loss causes us to think of possible reasons for the careless treatment of the document. Tosfos will examine each possible reason that would render the document invalid and thus explain why the wife was not as careful with it as she should have been.
a) קנוניא - conspiracy. There is a possibility that the husband already paid the Kesubah. After paying the Kesubah, the husband then conspired with his wife and returned the document to her so that she would attempt to collect with the document a second time. The husband would then claim that he has no money with which to pay and she would then proceed to collect from properties that he sold. After collecting from the purchasers of his sold properties, the couple would then divide the illegally collected funds.
b) שמא כתב בניסן ולא נשא עד תשרי - perhaps the document was written in Nissan with the intention of marrying then. However, the wedding did not take place until the following Tishrei. According to the document, any property sold between Nissan and Tishrei is collateral for the Kesubah, but actually the marriage took place the following Tishrei and those properties may not be subject to the lien.
c) קודם אירוסין - Perhaps the document was written even before the betrothal. The lien on properties sold by the husband is in effect only for such property he owned at the time of the betrothal. According to the written document even such properties sold before the betrothal are illegally subject to the lien of the Kesubah.
d) תוספות - the voluntary addition to the Kesubah by the husband may differ from the initial Kesubah instituted by the Rabanan.
Tosfos explains: By teaching us that when the husband admits that he did not yet pay the Kesubah, the Kesubah document is returned to the wife, the Baraisa is informing us that:
We are not concerned about a) conspiracy between husband and wife to defraud the purchasers of his sold properties. There is also no concern that b) perhaps he wrote the Kesubah in Nissan but did not marry until the following Tishrei, which would render the properties sold between Nissan and Tishrei illegally subject to the Kesubah lien, for the one hundred zuz of a widow’s Kesubah and the two hundred zuz of a virgin's Kesubah are actually mortgaged to the lien from the time of betrothal, even when a Kesubah document was not written, because betrothal generates publicity and the purchasers of the husband’s property are aware of the Chassan’s potential liability for the Kesubah payment even though the wedding did not take place for many months afterward. Since they are aware of his liability, the lien on his property sold between Nissan and the following Tishrei is legal and they are obligated to pay when the husband has no funds with which to pay the Kesubah.
But what about possibility c) that the Kesubah may have been written even before betrothal? There is no concern that the Kesubah document may have been written before betrothal, which would then establish an illegal lien on property that the husband sold before betrothal.
We have explained that the lien of a Kesubah is accomplished by the betrothal even though a Kesubah document was not written. The reason for this is quite simple. As Tosfos explained earlier, betrothal is public information. Whenever one betroths his Kallah, everyone knows that the Chassan now has a Kesubah obligation. Thus they know to be careful when purchasing property from him. When they do purchase from him they are fully aware of the possible Kesubah liability and they have chosen that it is worth their while to take the risk.
This logic is quite applicable to the amount that the Chassan is required to give his Kallah by Rabbinic edict. Everyone is aware that the Chassan has an obligation to pay the one hundred or two hundred zuz the Rabanan mandated. However, very often (in today’s Kesubos this is universal) the Chassan voluntarily adds to the amount obligated by the Rabanan. This additional amount is not common knowledge, for not everybody knows if and how much the Chassan voluntarily added to the Kesubah. Thus, the lien automatically established by betrothal is effective only insofar as the required one or two hundred zuz is concerned. There is no automatic lien as far as the additional amount is concerned. If so, we are now faced with a problem: Tosfos explained earlier that we are not concerned about whether the Kesubah may have been written in Nissan and the actual wedding took place in Tishrei, for in any case the lien of Kesubah is established at the time of betrothal. But this is only true of the mandated amount, not for the additional voluntary sum. We should then be concerned that perhaps the Kesubah was written in Nissan and they first married the following Tishrei and the lien on properties sold before Tishrei is illegal?
The Gemara later (12b) discusses a similar problem. But that which we learned in a Mishna: We may write a loan document for the borrower even though the lender is not present. We assume that the borrower who stands to lose if the document reaches the lender before the loan occurs will not allow this to happen.
The Gemara asks: Why are we initially allowed to write [this loan document]? We should be concerned that [the borrower] wrote the document with the intention of borrowing in Nissan, but the actual loan may not happen till later in Tishrei, and [the lender] will come to collect from the purchasers of property sold between Nissan and Tishrei illegally? Since the loan did not happen till Tishrei, property sold by the lender before Tishrei should not be subject to the lien. However, the document does include those properties in the lien. This can lead to an illegal collection by the lender from the purchaser of these properties.
Rav Assi said: We are speaking of documents of acquisition where the borrower specifically states that he is giving the lender a lien as of the date of the document even if there will never be a loan. This is effective in establishing a lien, for [the borrower] has accepted this obligation upon himself.
Abaye disagrees: Abaye says: the witnesses of the document, by signing it, establish a lien for the benefit [of the lender]. Even if it is not a document of acquisition.
Abaye maintains that the very act of witnesses signing a loan document establishes a lien on the borrower’s property even if the loan never took place. Thus according to Abaye as long as a Kesubah document is signed, a lien is established even for the voluntary additional amount added to the Kesubah by the Chassan. According to Abaye, who says that when witnesses sign a document they establish a lien for the benefit of the [lender], it comes out well that even insofar as the additional amount as well, that we need not be concerned there may be an illegal lien established by the Kesubah if it was written in Nissan and the wedding did not take place till Tishrei, because the effective date of the lien is the date it was signed, not the date when the loan or the wedding took place.
Rav Assi who disagrees with Abaye and does not hold that the signing of the document automatically establishes a lien on the [property of the borrower will interpret our Baraisa as speaking of when the husband specifically wrote the Kesubah as a document of acquisition. It is only then that we would not be concerned that there is an illegal lien established for the additional amount by the document.
We must keep in mind that we should be very concerned about the loss of a document. It raises questions in our minds.1See Rashi (12b) ד'ה הנה ריעי. If in fact it was a valid document, how did it happen that the wife lost it? Most people are extremely careful about caring for their documents, especially those that represent a considerable sum. The loss causes us to think of possible reasons for the careless treatment of the document. Tosfos will examine each possible reason that would render the document invalid and thus explain why the wife was not as careful with it as she should have been.
a) קנוניא - conspiracy. There is a possibility that the husband already paid the Kesubah. After paying the Kesubah, the husband then conspired with his wife and returned the document to her so that she would attempt to collect with the document a second time. The husband would then claim that he has no money with which to pay and she would then proceed to collect from properties that he sold. After collecting from the purchasers of his sold properties, the couple would then divide the illegally collected funds.
b) שמא כתב בניסן ולא נשא עד תשרי - perhaps the document was written in Nissan with the intention of marrying then. However, the wedding did not take place until the following Tishrei. According to the document, any property sold between Nissan and Tishrei is collateral for the Kesubah, but actually the marriage took place the following Tishrei and those properties may not be subject to the lien.
c) קודם אירוסין - Perhaps the document was written even before the betrothal. The lien on properties sold by the husband is in effect only for such property he owned at the time of the betrothal. According to the written document even such properties sold before the betrothal are illegally subject to the lien of the Kesubah.
d) תוספות - the voluntary addition to the Kesubah by the husband may differ from the initial Kesubah instituted by the Rabanan.
Tosfos explains: By teaching us that when the husband admits that he did not yet pay the Kesubah, the Kesubah document is returned to the wife, the Baraisa is informing us that:
We are not concerned about a) conspiracy between husband and wife to defraud the purchasers of his sold properties. There is also no concern that b) perhaps he wrote the Kesubah in Nissan but did not marry until the following Tishrei, which would render the properties sold between Nissan and Tishrei illegally subject to the Kesubah lien, for the one hundred zuz of a widow’s Kesubah and the two hundred zuz of a virgin's Kesubah are actually mortgaged to the lien from the time of betrothal, even when a Kesubah document was not written, because betrothal generates publicity and the purchasers of the husband’s property are aware of the Chassan’s potential liability for the Kesubah payment even though the wedding did not take place for many months afterward. Since they are aware of his liability, the lien on his property sold between Nissan and the following Tishrei is legal and they are obligated to pay when the husband has no funds with which to pay the Kesubah.
But what about possibility c) that the Kesubah may have been written even before betrothal? There is no concern that the Kesubah document may have been written before betrothal, which would then establish an illegal lien on property that the husband sold before betrothal.
We have explained that the lien of a Kesubah is accomplished by the betrothal even though a Kesubah document was not written. The reason for this is quite simple. As Tosfos explained earlier, betrothal is public information. Whenever one betroths his Kallah, everyone knows that the Chassan now has a Kesubah obligation. Thus they know to be careful when purchasing property from him. When they do purchase from him they are fully aware of the possible Kesubah liability and they have chosen that it is worth their while to take the risk.
This logic is quite applicable to the amount that the Chassan is required to give his Kallah by Rabbinic edict. Everyone is aware that the Chassan has an obligation to pay the one hundred or two hundred zuz the Rabanan mandated. However, very often (in today’s Kesubos this is universal) the Chassan voluntarily adds to the amount obligated by the Rabanan. This additional amount is not common knowledge, for not everybody knows if and how much the Chassan voluntarily added to the Kesubah. Thus, the lien automatically established by betrothal is effective only insofar as the required one or two hundred zuz is concerned. There is no automatic lien as far as the additional amount is concerned. If so, we are now faced with a problem: Tosfos explained earlier that we are not concerned about whether the Kesubah may have been written in Nissan and the actual wedding took place in Tishrei, for in any case the lien of Kesubah is established at the time of betrothal. But this is only true of the mandated amount, not for the additional voluntary sum. We should then be concerned that perhaps the Kesubah was written in Nissan and they first married the following Tishrei and the lien on properties sold before Tishrei is illegal?
The Gemara later (12b) discusses a similar problem. But that which we learned in a Mishna: We may write a loan document for the borrower even though the lender is not present. We assume that the borrower who stands to lose if the document reaches the lender before the loan occurs will not allow this to happen.
The Gemara asks: Why are we initially allowed to write [this loan document]? We should be concerned that [the borrower] wrote the document with the intention of borrowing in Nissan, but the actual loan may not happen till later in Tishrei, and [the lender] will come to collect from the purchasers of property sold between Nissan and Tishrei illegally? Since the loan did not happen till Tishrei, property sold by the lender before Tishrei should not be subject to the lien. However, the document does include those properties in the lien. This can lead to an illegal collection by the lender from the purchaser of these properties.
Rav Assi said: We are speaking of documents of acquisition where the borrower specifically states that he is giving the lender a lien as of the date of the document even if there will never be a loan. This is effective in establishing a lien, for [the borrower] has accepted this obligation upon himself.
Abaye disagrees: Abaye says: the witnesses of the document, by signing it, establish a lien for the benefit [of the lender]. Even if it is not a document of acquisition.
Abaye maintains that the very act of witnesses signing a loan document establishes a lien on the borrower’s property even if the loan never took place. Thus according to Abaye as long as a Kesubah document is signed, a lien is established even for the voluntary additional amount added to the Kesubah by the Chassan. According to Abaye, who says that when witnesses sign a document they establish a lien for the benefit of the [lender], it comes out well that even insofar as the additional amount as well, that we need not be concerned there may be an illegal lien established by the Kesubah if it was written in Nissan and the wedding did not take place till Tishrei, because the effective date of the lien is the date it was signed, not the date when the loan or the wedding took place.
Rav Assi who disagrees with Abaye and does not hold that the signing of the document automatically establishes a lien on the [property of the borrower will interpret our Baraisa as speaking of when the husband specifically wrote the Kesubah as a document of acquisition. It is only then that we would not be concerned that there is an illegal lien established for the additional amount by the document.
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Tosafot on Bava Metzia
For we are concerned [that there may be] two kesubah [documents]. The Gemara raised a contradiction between two Baraisos:
Baraisa a) on (7a), where the Rabanan say that when one finds a notarized loan document it is not to be returned to the lender, because we consider the possibility that it already had been paid as the husband claims. R’ Yose maintains that we are not concerned about payment, since the document is intact. Had the loan been paid, the document would have been destroyed.
Baraisa b) on (7b) where it is evident that when the marriage has already been terminated by divorce or death of the husband, R’ Yose does consider the possibility that a lost kesubah was already paid.
The Gemara first reconciled the two Baraisos by saying that the opinions in the first Baraisa are to be switched. It is R’ Yose who is concerned that the loan was paid and the Rabanan who are not concerned that the loan was paid.
The Gemara then asked that this would create a problem with the opinion of the Rabanan. In Baraisa a) they say we are not concerned about the possibility that the loan document was paid and in Baraisa b) they maintain that we do not return a lost kesubah to the wife.
Ravina now offers a solution to this problem. The two Baraisos are speaking of two different concerns. In Baraisa a) insofar as being concerned that a lost document has already been paid, the Rabanan rule that we need not be concerned about payment, since the document is intact. However, in Baraisa b) where we are discussing a lost kesubah document, we are concerned that a husband who claims I wrote a second substitute kesubah document might be telling the truth. We can therefore not allow the lost kesubah to be returned to his wife.
Ravina introduced his resolution by saying that we must switch the opinions of the Baraisa a) as initially suggested by the Gemara. Tosfos questions why this is necessary. Perhaps we can resolve the contradiction between the two Baraisos as follows: Baraisa a) need not be switched and it is R’ Yose who rules in Baraisa a) that we are not concerned that the loan was paid and in Baraisa b) he maintains that we are not concerned the kesubah was paid, but we are concerned that there may be a second kesubah?
Without switching the two opinions in Baraisa a) we cannot resolve the contradiction by saying that in Baraisa a) R’ Yose is not concerned that a loan document was paid but in Baraisa b) R’ Yose considers the husband’s claim that he wrote two kesubos, the second as a substitute for the lost first kesubah.
For if so, that in Baraisa b) R’ Yose is expressing his concern that the husband truly wrote a substitute kesubah, when she is under the jurisdiction of her husband, i.e. she is still married to him, why would R’ Yose rule that the lost kesubah should be returned to the wife when the husband does not admit that it belongs to her? His claim that he wrote a second kesubah is just as credible when she is still married as it is when the marriage has ended. Insofar as a claim that I paid the kesubah is concerned, there is a huge difference between when the couple is still married, where there never was a need to pay the kesubah and when the marriage ended where the the kesubah should have been paid. However, in regard to the claim “I wrote a second substitute kesubah” there is no difference whether they are still married or divorced. In either case it is possible that she lost her first kesubah and her husband wrote a second substitute kesubah.
According to the switched Baraisa a) R’ Yose maintains that he is concerned about payment. In Baraisa b) he is saying that during the marriage there is no concern that the document was paid. The Rabanan in Baraisa a) are never concerned about payment, since the document is intact. In Baraisa b) they say that they are concerned about the possibility of a second substitute kesubah.
Baraisa a) on (7a), where the Rabanan say that when one finds a notarized loan document it is not to be returned to the lender, because we consider the possibility that it already had been paid as the husband claims. R’ Yose maintains that we are not concerned about payment, since the document is intact. Had the loan been paid, the document would have been destroyed.
Baraisa b) on (7b) where it is evident that when the marriage has already been terminated by divorce or death of the husband, R’ Yose does consider the possibility that a lost kesubah was already paid.
The Gemara first reconciled the two Baraisos by saying that the opinions in the first Baraisa are to be switched. It is R’ Yose who is concerned that the loan was paid and the Rabanan who are not concerned that the loan was paid.
The Gemara then asked that this would create a problem with the opinion of the Rabanan. In Baraisa a) they say we are not concerned about the possibility that the loan document was paid and in Baraisa b) they maintain that we do not return a lost kesubah to the wife.
Ravina now offers a solution to this problem. The two Baraisos are speaking of two different concerns. In Baraisa a) insofar as being concerned that a lost document has already been paid, the Rabanan rule that we need not be concerned about payment, since the document is intact. However, in Baraisa b) where we are discussing a lost kesubah document, we are concerned that a husband who claims I wrote a second substitute kesubah document might be telling the truth. We can therefore not allow the lost kesubah to be returned to his wife.
Ravina introduced his resolution by saying that we must switch the opinions of the Baraisa a) as initially suggested by the Gemara. Tosfos questions why this is necessary. Perhaps we can resolve the contradiction between the two Baraisos as follows: Baraisa a) need not be switched and it is R’ Yose who rules in Baraisa a) that we are not concerned that the loan was paid and in Baraisa b) he maintains that we are not concerned the kesubah was paid, but we are concerned that there may be a second kesubah?
Without switching the two opinions in Baraisa a) we cannot resolve the contradiction by saying that in Baraisa a) R’ Yose is not concerned that a loan document was paid but in Baraisa b) R’ Yose considers the husband’s claim that he wrote two kesubos, the second as a substitute for the lost first kesubah.
For if so, that in Baraisa b) R’ Yose is expressing his concern that the husband truly wrote a substitute kesubah, when she is under the jurisdiction of her husband, i.e. she is still married to him, why would R’ Yose rule that the lost kesubah should be returned to the wife when the husband does not admit that it belongs to her? His claim that he wrote a second kesubah is just as credible when she is still married as it is when the marriage has ended. Insofar as a claim that I paid the kesubah is concerned, there is a huge difference between when the couple is still married, where there never was a need to pay the kesubah and when the marriage ended where the the kesubah should have been paid. However, in regard to the claim “I wrote a second substitute kesubah” there is no difference whether they are still married or divorced. In either case it is possible that she lost her first kesubah and her husband wrote a second substitute kesubah.
According to the switched Baraisa a) R’ Yose maintains that he is concerned about payment. In Baraisa b) he is saying that during the marriage there is no concern that the document was paid. The Rabanan in Baraisa a) are never concerned about payment, since the document is intact. In Baraisa b) they say that they are concerned about the possibility of a second substitute kesubah.
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Tosafot on Bava Metzia
The division. This word is the introductory word of R’ Elazar’s statement. What does it mean in the context of his statement? The word divide - has many different meanings. Among the definitions offered by the World Web dictionary we find the following:
a) A serious disagreement between two groups of people.
b) Separate into parts or portions.
The word מחלוקת used in our Gemara can also be translated these two ways. Most often this construction of the word refers to a) a disagreement. Due to the context which it is used in our Gemara, Rashi, (ד'ה מחלוקת) in the name of R’ Yitzchak ben Menachem, tells us that the intended meaning is b) separate into parts or portions. Obviously when R’ Elazar says the מחלוקת is when both are equally in possession of the document, we must be able to explain the end of his statement “but when they are not equally in possession”, in a logical manner.
Tosfos agrees with Rashi and also explains why Rashi translated it as he did: In regard to the word מחלוקת in R’ Elazar’s statement, Rashi explained that this refers to Raban Shimon ben Gamliel’s ruling b) the lender and borrower are to divide the debt equally. The continuation of R’ Elazar’s statement is perfectly logical. He is saying that when one litigant is holding the form1See Artscroll (7B3, note 25). and the other the essence, there will not be an equal division because the essence is more valuable than the form as the Gemara will soon explain.
Tosfos shows that if we translate מחלוקת as a) a disagreement, the conclusion of R’ Elazar’s statement does not make sense. He is correct, for he did not want to translate the word מחלוקת as referring to the disagreement between Rebbe and Raban Shimon ben Gamliel and R’ Elazar would be saying that their disagreement is only when both are holding the essence of the document or both are holding the form of the document, but they do not disagree when one is holding the essence and the other the form. Because how could he then say: but when one is holding the form etc. [and the other is holding the essence], which implies that they do not argue when one is holding the essence and the other the form.
But this is not so. For there as well, when one is holding the essence and the other the form, if [the document] is not notarized, according to Rebbe, [the lender] will not receive anything. Rebbe’s concern that the document cannot be used when it is not notarized does not change when one of the litigants has an advantage over the other. Ultimately, one cannot collect anything with any portion of a non-notarized document because we are concerned that it may be a forgery. Thus, if we translate מחלוקת as a) disagreement, the conclusion of R’ Elazar’s statement is illogical. We must therefore explain מחלוקת as b) a separation of parts and the conclusion of R’ Elazar’s statement makes sense. He is saying that when each of the litigants holds a different part of the document, it is not divided equally, but according to the value of each part as the Gemara will soon explain.
a) A serious disagreement between two groups of people.
b) Separate into parts or portions.
The word מחלוקת used in our Gemara can also be translated these two ways. Most often this construction of the word refers to a) a disagreement. Due to the context which it is used in our Gemara, Rashi, (ד'ה מחלוקת) in the name of R’ Yitzchak ben Menachem, tells us that the intended meaning is b) separate into parts or portions. Obviously when R’ Elazar says the מחלוקת is when both are equally in possession of the document, we must be able to explain the end of his statement “but when they are not equally in possession”, in a logical manner.
Tosfos agrees with Rashi and also explains why Rashi translated it as he did: In regard to the word מחלוקת in R’ Elazar’s statement, Rashi explained that this refers to Raban Shimon ben Gamliel’s ruling b) the lender and borrower are to divide the debt equally. The continuation of R’ Elazar’s statement is perfectly logical. He is saying that when one litigant is holding the form1See Artscroll (7B3, note 25). and the other the essence, there will not be an equal division because the essence is more valuable than the form as the Gemara will soon explain.
Tosfos shows that if we translate מחלוקת as a) a disagreement, the conclusion of R’ Elazar’s statement does not make sense. He is correct, for he did not want to translate the word מחלוקת as referring to the disagreement between Rebbe and Raban Shimon ben Gamliel and R’ Elazar would be saying that their disagreement is only when both are holding the essence of the document or both are holding the form of the document, but they do not disagree when one is holding the essence and the other the form. Because how could he then say: but when one is holding the form etc. [and the other is holding the essence], which implies that they do not argue when one is holding the essence and the other the form.
But this is not so. For there as well, when one is holding the essence and the other the form, if [the document] is not notarized, according to Rebbe, [the lender] will not receive anything. Rebbe’s concern that the document cannot be used when it is not notarized does not change when one of the litigants has an advantage over the other. Ultimately, one cannot collect anything with any portion of a non-notarized document because we are concerned that it may be a forgery. Thus, if we translate מחלוקת as a) disagreement, the conclusion of R’ Elazar’s statement is illogical. We must therefore explain מחלוקת as b) a separation of parts and the conclusion of R’ Elazar’s statement makes sense. He is saying that when each of the litigants holds a different part of the document, it is not divided equally, but according to the value of each part as the Gemara will soon explain.
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Tosafot on Bava Metzia
[When Raban Shimon ben Gamliel ruled they should] divide [the document he] also [meant] the value [of the document]. See Artscroll (7b4) who explains that the Gemara is telling us that we should not think that Raban Shimon ben Gamliel is ruling that we tear the document in two, which would of course mean that the lender loses all. Rather, he means that we divide according to the value of the document. Perhaps their explanation is based on Rishonim who do follow that approach. Tosfos rejects this explanation of the Gemara.
For the sake of clarity we will label each explanation of the Gemara:
1) The Gemara is rejecting the idea that the document is to be physically split in half and concluding that it is divided according to its value.
2) The Gemara is rejecting the idea that we divide the face value of the document between creditor and debtor and concluding that we divide the market value of said document between creditor and debtor.
Tosfos first states that explanation 2) is correct. He will then explain why he rejects explanation 1). The Gemara is saying: We do not divide the face value of the document, rather we divide the market value of the document, which is always less than the face value. From this market value [the debtor] pays half. For example: When the face value of the document is one thousand dollars, the market value of the document may be only nine hundred dollar. The debtor must pay the creditor only four hundred fifty dollars.
Tosfos shows us how his understanding works with the continuation of the Gemara: For if you do not say that we divide the market value, but rather half of the actual debt, which is the face value, in regard to a cloak where our Mishna also ruled it is to be divided, do we actually divide it, that would certainly damage it. We see that the term “they divide” does not mean a physical division, rather a division of value. So too, the division of a loan document does not mean that we divide the face value of the loan, but the market value.
There were manuscripts of the Gemara that differed from our text. Their text read: ויחלוקו נמי לא דפסקינן לשטרא - when we say “they divide” it does not mean that they split the document.1See ישא ברכה. According to this text it is clear that the Gemara is working with explanation 1) and is rejecting physically splitting the document. Tosfos must explain why that text is incorrect.
We do not have the text - not that we split the document, which clearly says that the initial explanation was that the document is split. Tosfos offers two reasons for rejecting that text and explanation 1). The first: for if so, why is [the Gemara] citing the case of dividing a cloak to prove that division means the value and not the actual cloak? The flow of the Gemara’s proof must be: Even if you insist that “they divide” in Raban Shimon ben Gamliel’s statement means physical division, that explanation is definitely untenable when discussing the cloak mentioned in our Mishna. On the contrary, if a cloak is split in two the damage will not be so great, whereas if a document is split it is worthless.2See ריטב"א for a defense of the earlier text and explanation 1). If we might accept the explanation that a document can be physically split in two, we certainly could accept that a cloak is physically split in two. There is absolutely no logical proof from the case of a cloak to the case of a document. However, if the choice is between dividing the face value versus the market value, we can say that the Gemara is proving that just as in the case of the cloak, “they divide” does not mean a physical division, because that would entail a loss, but rather “they divide” refers to market value, so too, when discussing a document the term “they divide” means the market value and not the face value.
The second reason for rejecting explanation 1): Furthermore, it is plain that the Gemara knows that the document is not to be physically divided in two, because, earlier (7a) we explained that the disagreement between Rebbe and Raban Shimon ben Gamliel is about whether when a borrower] admits that the document was legally written, does the lender have to notarize the signatures or not in order to collect. This dispute makes sense only if the document is going to be used for collection. If it is going to be torn in two, there is certainly no need to certify the signatures. If so, there was no need for the Gemara to prove that the document is not torn in two. However, if we say that the Gemara is proving that we divide the market value as opposed to the face value, there most certainly a need for notarization since the borrower will be collecting some money with this document.
Rather, the truth is as we have explained. Explanation 2) is correct. The Gemara is rejecting a division of the face value in favor of a division of market value.
For the sake of clarity we will label each explanation of the Gemara:
1) The Gemara is rejecting the idea that the document is to be physically split in half and concluding that it is divided according to its value.
2) The Gemara is rejecting the idea that we divide the face value of the document between creditor and debtor and concluding that we divide the market value of said document between creditor and debtor.
Tosfos first states that explanation 2) is correct. He will then explain why he rejects explanation 1). The Gemara is saying: We do not divide the face value of the document, rather we divide the market value of the document, which is always less than the face value. From this market value [the debtor] pays half. For example: When the face value of the document is one thousand dollars, the market value of the document may be only nine hundred dollar. The debtor must pay the creditor only four hundred fifty dollars.
Tosfos shows us how his understanding works with the continuation of the Gemara: For if you do not say that we divide the market value, but rather half of the actual debt, which is the face value, in regard to a cloak where our Mishna also ruled it is to be divided, do we actually divide it, that would certainly damage it. We see that the term “they divide” does not mean a physical division, rather a division of value. So too, the division of a loan document does not mean that we divide the face value of the loan, but the market value.
There were manuscripts of the Gemara that differed from our text. Their text read: ויחלוקו נמי לא דפסקינן לשטרא - when we say “they divide” it does not mean that they split the document.1See ישא ברכה. According to this text it is clear that the Gemara is working with explanation 1) and is rejecting physically splitting the document. Tosfos must explain why that text is incorrect.
We do not have the text - not that we split the document, which clearly says that the initial explanation was that the document is split. Tosfos offers two reasons for rejecting that text and explanation 1). The first: for if so, why is [the Gemara] citing the case of dividing a cloak to prove that division means the value and not the actual cloak? The flow of the Gemara’s proof must be: Even if you insist that “they divide” in Raban Shimon ben Gamliel’s statement means physical division, that explanation is definitely untenable when discussing the cloak mentioned in our Mishna. On the contrary, if a cloak is split in two the damage will not be so great, whereas if a document is split it is worthless.2See ריטב"א for a defense of the earlier text and explanation 1). If we might accept the explanation that a document can be physically split in two, we certainly could accept that a cloak is physically split in two. There is absolutely no logical proof from the case of a cloak to the case of a document. However, if the choice is between dividing the face value versus the market value, we can say that the Gemara is proving that just as in the case of the cloak, “they divide” does not mean a physical division, because that would entail a loss, but rather “they divide” refers to market value, so too, when discussing a document the term “they divide” means the market value and not the face value.
The second reason for rejecting explanation 1): Furthermore, it is plain that the Gemara knows that the document is not to be physically divided in two, because, earlier (7a) we explained that the disagreement between Rebbe and Raban Shimon ben Gamliel is about whether when a borrower] admits that the document was legally written, does the lender have to notarize the signatures or not in order to collect. This dispute makes sense only if the document is going to be used for collection. If it is going to be torn in two, there is certainly no need to certify the signatures. If so, there was no need for the Gemara to prove that the document is not torn in two. However, if we say that the Gemara is proving that we divide the market value as opposed to the face value, there most certainly a need for notarization since the borrower will be collecting some money with this document.
Rather, the truth is as we have explained. Explanation 2) is correct. The Gemara is rejecting a division of the face value in favor of a division of market value.
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