Bava Metzia 26

who denies the whole transaction.<span class="x" onmousemove="('comment',' Lit., 'There was no such thing'. The borrower cannot claim the document as he maintains that it is forged. ');">¹</span>

R. Eleazar says: The difference of opinion [in our Mishnah] concerns a case where the debtor does not admit [his indebtedness]. R. Meir being of the opinion that a document which contains no clause mortgaging [the debtor's] property does not entitle [the creditor] to exact payment either from encumbered property or from unencumbered property,<span class="x" onmousemove="('comment',' According to R. Meir every note of indebtedness must, in order to be valid, contain a clause mortgaging the borrower's property, otherwise the loan is treated as a verbal loan without witnesses, and the lender can only claim his money if the borrower admits the debt. ');">²</span>

while the Rabbis<span class="x" onmousemove="('comment',' The Sages in the Mishnah. ');">³</span>

are of the opinion that it does not entitle [the creditor] to exact payment from encumbered property, but that it does entitle him to exact payment from unencumbered property.<span class="x" onmousemove="('comment',' The Rabbis recognise the validity of the document to the extent that they treat it as a verbal loan to which witnesses testify. The lender can therefore exact payment in ordinary cases from unencumbered property, even when the borrower denies the debt. But in the case of a lost document the borrower's denial is accepted (for the reason indicated above) and the document is therefore deemed to be forged and is not returned. ');">⁴</span>

But in a case where the debtor admits [the debt] all agree that [the document] should be returned, and that we are not afraid that the debt may have been already paid and a fraudulent agreement reached [between the lender and the borrower to exact payment from the purchasers of the borrower's property]. But R. Johanan says: The difference of opinion [in our Mishnah] concerns a case where the debtor admits [his indebtedness], R. Meir being of the opinion that a document which contains no clause mortgaging [the debtor's] property does not entitle [the creditor] to exact payment from encumbered property, but it does entitle him to exact payment from unencumbered property. But in a case where the debtor does not admit [his indebtedness]<span class="x" onmousemove="('comment',' Even if he admits that the document is genuine, but contends that the debt has been paid. ');">⁵</span>

all agree that [the document] should not be returned, because we are afraid that it may have been already paid.

It has been taught in support of R. Johanan, and in refutation of R. Eleazar in one point, and of Samuel in two points: If one has found notes of indebtedness in which there is a clause mortgaging [the debtor's] property, even if both [the debtor and creditor] admit [the genuineness of the documents], one should not return them either to the one or to the other. But if they contain no clause mortgaging [the debtor's] property, then as long as the borrower admits [the debt] they should be returned to the lender, but if the borrower does not admit the debt, they should not be returned either to the one or to the other. This is the view of R. Meir, for R. Meir maintained that notes of indebtedness which contain a clause mortgaging [the debtor's] property [entitle the lender to] exact payment from encumbered property,<span class="x" onmousemove="('comment',' Therefore they must not be returned, even if their genuineness is admitted, as we are afraid of a 'fraudulent agreement'. ');">⁶</span>

and that those that contain no clause mortgaging [the debtor's] property [entitle the lender] to exact payment from unencumbered property [only]. But the Sages say: In either case does [the document entitle the lender to] exact payment from encumbered property. This is a refutation of R. Eleazar in one point, as he maintained that according to R. Meir a document that contains no clause mortgaging [the debtor's] property does not [entitle the lender to] exact payment either from encumbered or unencumbered property, and he [further] said that both R. Meir and the Rabbis agree that we are not afraid of a fraudulent agreement [between the lender and the borrower to exact payment from the purchasers of the borrower's property], while the Baraitha teaches that a document which contains no clause mortgaging [the debtor's] property [does not entitle the creditor to] exact payment from encumbered property but does [entitle him to exact] payment from unencumbered property, and it [further] proceeds to indicate that both R. Meir and the Rabbis agree that we are afraid of a 'fraudulent agreement', for it teaches that even if both parties admit [the debt] one must not return [the documents] either to the one or to the other, which shows that we are afraid of a fraudulent agreement [between the parties to rob the purchasers of the borrower's property]. But are not these two points?<span class="x" onmousemove="('comment',' It was maintained before that the Baraitha refutes the view of R. Eleazar in one point only. ');">⁷</span>