Responsa for Bava Metzia 33:24

אמר רבי חייא בר אבא א"ר יוחנן הטוען אחר מעשה ב"ד

it shall be returned to the owners. [For] if [the objection is raised that] it may have been written for the purpose of a loan, and the loan may [in fact] not have been granted, [the objection is not valid,] as [the note] contains the endorsement of the Court,<span class="x" onmousemove="('comment',' Which shows that the transaction recorded in the document must have taken place. ');">²²</span> [and] if [the objection is raised] that [the loan] may have been repaid, [the objection is not valid,] as we are not afraid of a loan having been repaid on the day [on which it was granted]. R. Zera then said to R. Assi: Did R. Johanan really teach this? Did you not yourself teach in the name of R. Johanan [as follows]: A note which was given for a loan that was [subsequently] repaid cannot be used for the purpose of another loan, because the obligation [incurred by the first loan] was cancelled [on it being repaid]?<span class="x" onmousemove="('comment',' As the loan to which the note referred, and which formed a lien on the borrower's property, was repaid, the borrower's indebtedness in regard to this loan ceased. If then a new loan is granted, without a new note of indebtedness, it must be regarded as a mere verbal transaction, which does not form a lien on the borrower's property and does not entitle the lender to seize goods sold by the borrower. If, however, the note used for the repaid loan is retained by the lender for the purpose of the second loan, the lender may, on the strength of it, seize property sold by the borrower — which would be illegal, as in reality the second loan was a mere verbal transaction. ');">²³</span> Now, when [was the note to be used again]? If on the following day or on any date later [than that given in the note], why state as a reason the fact that the obligation [incurred by the first loan] was cancelled? [The invalidity of the note] follows from the fact that it is antedated,<span class="x" onmousemove="('comment',' If the second loan was granted on a day after the date given in the note, or on any subsequent date, the note, if applied to the second loan, must be regarded as antedated, and therefore it is invalid. ');">²⁴</span> for we have learned in a Mishnah: Antedated notes of indebtedness are invalid.<span class="x" onmousemove="('comment',' Sheb. X. V. infra 72a; Sanh. 32a; B.B. 157b and 171b. ');">²⁵</span> It must therefore be assumed that [the note was to be used a second time] on the same day [as that given in the note]: so we see that people do pay on the same day [as they borrow]? — R. Assi answered him: Did I say that one never pays [a debt on the day it is incurred]? I said: people do not usually pay on the same day.<span class="x" onmousemove="('comment',' And as it is not usual for a loan to be repaid on the same day, we do not apprehend that this may have happened in the case of the lost document, which must consequently be returned to the creditor, but if it did happen that a loan was repaid on the same day, R. Johanan teaches that the note must not be used for a second loan — not even on the same day — for the reason given by him. ');">²⁶</span> R. Kahana said: [The lost document is to be returned<span class="x" onmousemove="('comment',' According to R. Johanan. ');">²⁷</span> to the owner] when the debtor admits [that he has not paid]. But if so, [it is asked,] why need we be told this? — [Because] you might say: This [debtor] has really paid, and the reason why he says he has not paid is that he wishes to have [the note] returned [to the creditor] so that he may borrow on it again and thus save the scribe's fees.<span class="x" onmousemove="('comment',' For writing another note, which is charged to the debtor, v. supra p. 200, n. 7. ');">²⁸</span> Therefore we are told [that we do not say this, the reason being] that in such circumstances the lender himself would not permit it, thinking the Rabbis may hear of it and make me lose [my money].<span class="x" onmousemove="('comment',' The lender would be afraid that the Rabbis, on learning that the note was antedated and therefore invalid, so far as the second loan was concerned, would prevent him from seizing the debtor's sold property. ');">²⁹</span> But why is this case different from the one we have learned.<span class="x" onmousemove="('comment',' V. supra 12b. ');">³⁰</span> IF ONE HAS FOUND NOTES OF INDEBTEDNESS WHICH CONTAIN A CLAUSE PLEDGING [THE DEBTOR'S] PROPERTY, ONE SHALL NOT RETURN THEM — and it is explained as referring to a case where the debtor admits [the debt], and [the note has not to be returned] for the reason that it may have been written for the purpose of a loan to be granted in Nisan, while in reality the loan may not have been granted till Tishri, with the result that the creditor may come unlawfully to seize property bought by people [from the debtor] between Nisan and Tishri. Now, why do we not say [there also] that in such circumstances the lender himself would not permit [the note to be used in Tishri] but would say to him [the borrower]: Write another note in Tishri, as otherwise the Rabbis may hear of it and make me lose [my money]? — It was said [in reply]: There [in the Mishnah], seeing that he [the lender] would profit by seizing property sold [by the debtor] between Nisan and Tishri, he [the lender] would be content and would say nothing. But here, seeing that he [the lender] would have no profit, as after all the note has only just been written,<span class="x" onmousemove="('comment',' As it bears that day's date. ');">³¹</span> what advantage is there in that note as regards seizing sold property?<span class="x" onmousemove="('comment',' As both loans were granted on the same day, the note for the second loan, even if written afresh, would have borne the same date and would have served the same purpose so far as the lender's right to seize the borrower's sold property is concerned. ');">³²</span> [Therefore we may assume that the lender] will not permit [the renewed use of] a note, the obligation of which expired [when the first loan was paid].<span class="x" onmousemove="('comment',' As legally the lender would not be entitled to seize sold property at all on the strength of such a note. ');">³³</span> R. Hiyya b. Abba said in the name of R. Johanan: Whoever pleads after an act of the Court

Teshuvot Maharam