Bava Metzia 36

חיישינן לשני שוירי וא"ל רב חסדא לרבה פוק עיין בה דלאורתא בעי מינך רב הונא נפק דק ואשכח דתנן כל מעשה ב"ד הרי זה יחזיר

We apprehend that there may be two places called Shawire.<span class="x" onmousemove="('comment',' Even when the messenger who lost the bill of divorcement appears before us and testifies that the husband who lives in Shawire sent him to deliver it, and there is no other man with the same name as the husband (and no other woman of the same name as the wife) known to be living in that place, we apprehend that there may be another place called Shawire where a man of the same name (and a woman of the same name) exists, and therefore we do not return the document. [This might better be rendered as a question: Do we apprehend that there may be two places called Shawire? v. Strashun, a.l.] ');">¹</span>

והא בי דינא דרב הונא דכי מקום שהשיירות מצויות דמי וקא פשיט רבה דיחזיר אלמא אי הוחזקו שני יוסף בן שמעון אין אי לא לא

R. Hisda then said to Rabbah: Go and consider it carefully, for in the evening R. Huna will ask you about it. So he went and examined it thoroughly, and he found that we had learnt [in a Mishnah]: Every document endorsed by the Court shall be returned.<span class="x" onmousemove="('comment',' Mishnah infra 20a. The endorsement of the Court shows that the transaction referred to in the document has been completed, so that the apprehension that the person who authorised the document to be written may have changed his mind and refused to complete the transaction, does not arise. As the bill of divorcement referred to by R. Huna was found in the Rabbi's court-house it must be assumed that it was lost after it was dealt with by the Court, and that therefore it must be treated like 'a document endorsed by the Court'. ');">²</span>

עבד רבה עובדא (בההוא גיטא דאשתכח) בי כיתנא דפומבדיתא כשמעתיה

Now, R. Huna's court-house is surely like a place where caravans pass frequently,<span class="x" onmousemove="('comment',' As many people come to the Court with such documents. ');">³</span>

איכא דאמרי היכא דמזבני כיתנא והוא שלא הוחזקו אע"ג דשכיחין שיירתא

and yet Rabbah decided that [the document] should be returned. We must therefore say that '[only] if two persons called 'Joseph ben Simeon' are known to be there it is so,<span class="x" onmousemove="('comment',' Only if two persons bearing the same name are known to live in the place where the document was issued is the document not returned. ');">⁴</span>

ואיכא דאמרי היכא דתרו כיתנא ואע"ג דהוחזקו דלא שכיחא שיירות

[but] if not, [it is] not [so]'.<span class="x" onmousemove="('comment',' I.e., the document has to be returned. ');">⁵</span>

רבי זירא רמי מתניתין אברייתא ומשני תנן המביא גט ואבד הימנו מצאו לאלתר כשר ואם לאו פסול ורמינהי מצא גט אשה בשוק בזמן שהבעל מודה יחזיר לאשה אין הבעל מודה לא יחזיר לא לזה ולא לזה

Rabbah decided an actual case where a bill of divorcement was found among the flax in pumbeditha in accordance with his teaching.<span class="x" onmousemove="('comment',' [In a case where a lost bill of divorcement was found in a place where only one of the two conditions was fulfilled, and Rabbah, following the principle he laid down, ruled that the bill should be returned for the benefit of the wife.] ');">⁶</span>

קתני מיהת בזמן שהבעל מודה יחזיר לאשה ואפילו לזמן מרובה

Some say where flax was sold,<span class="x" onmousemove="('comment',' A market where many people come to buy flax. Although this is like the case where caravans are frequent, the document was returned because there were no two persons of the same name known to exist in the place of issue. ');">⁷</span>

ומשני כאן במקום שהשיירות מצויות וכאן במקום שאין השיירות מצויות

and it was [a case where two bearing the same name] were not known to be [in the place], although caravans were frequent there; others say [it was the place] where flax was steeped, and even though [two persons bearing the same name] were known to be [in the place, the bill had to be returned] because caravans were not frequent there.<span class="x" onmousemove="('comment',' [It was not the market where people came to buy flax and consequently could not be treated as a place where 'caravans pass frequently,' but it was a case where two persons bearing the same name were known to exist and yet Rabbah decided in accordance with his teaching above that the document should be returned. On the cultivation of flax in Pumbeditha, v. Obermeyer, op. cit., p. 239.] ');">⁸</span>

איכא דאמרי והוא שהוחזקו דלא נהדר והיינו דרבה איכא דאמרי אע"ג דלא הוחזקו לא נהדר ופליגא דרבה

R. Zera pointed out a contradiction between our Mishnah and a Baraitha, and then explained it: We learnt [in the Mishnah]: If one has brought a bill of divorcement [in order to deliver it on behalf of the husband] and has lost it, [the law is that] if it is found immediately, it is valid, if not, it is invalid. This contradicts [the following Baraitha]: If one finds in the street a bill of divorcement it shall be returned to the woman when the [former] husband admits [its genuineness], but if the husband does not admit [its genuineness] it shall not be returned to either of them.<span class="x" onmousemove="('comment',' Either to the wife or to the husband (Git. 27a). The case cannot be decided until legal evidence is adduced in support of the plea of the one or the other. ');">⁹</span>

בשלמא רבה לא אמר כר' זירא מתניתין אלימא ליה לאקשויי אלא רבי זירא מ"ט לא אמר כרבה

At all events it says, 'When the husband admits [its genuineness] it shall be returned to the woman' — [obviously] even after a long time! — And [R. Zera] explained it [by saying]: There<span class="x" onmousemove="('comment',' In the Mishnah, which says that if found after a long interval the bill of divorcement is invalid. ');">¹⁰</span>

אמר לך מי קא תני הא אמר תנו נותנין ואפי' לזמן מרובה דלמא הא אמר תנו נותנין ולעולם כדקיימא לן לאלתר

[the reference is] to a place where caravans pass frequently, but here<span class="x" onmousemove="('comment',' In the Baraitha, which says that even if found after a long interval the bill should be returned when admitted by the husband to be genuine. ');">¹¹</span>

למ"ד לר' זירא במקום שהשיירות מצויות ואע"ג שלא הוחזקו שני יוסף בן שמעון ופליגא דרבה במאי קא מיפלגי

[the reference is] to a place where caravans do not pass frequently. Some say that it is only when [two persons bearing the same name] are known to be [in the place]<span class="x" onmousemove="('comment',' Where the bill was issued. ');">¹²</span>

רבה סבר דקתני כל מעשה ב"ד הרי זה יחזיר דאשתכח בב"ד עסקינן וב"ד כמקום שהשיירות מצויות והוא שהוחזקו לא יחזיר לא הוחזקו יחזיר

that we do not return [the bill],<span class="x" onmousemove="('comment',' Where caravans pass frequently. ');">¹³</span>

ורבי זירא אמר לך מי קתני כל מעשה ב"ד שנמצאו בב"ד כל מעשה ב"ד יחזיר קתני ולעולם דאשתכח אבראי

and this is [in accordance with] the view of Rabbah. Others say that even if [two persons bearing the same name] are not known to be in the place we do not return [the bill] — contrary to the view of Rabbah. Now, we can well understand why Rabbah did not argue like R. Zera,<span class="x" onmousemove="('comment',' I.e., why Rabbah did not point out the apparent contradiction between the Mishnah and the Baraitha, as R. Zera did. ');">¹⁴</span>

ר' ירמיה אמר כגון דקא אמרי עדים מעולם לא חתמנו אלא על גט אחד של יוסף בן שמעון

as he [Rabbah] deemed it more important to point out the [apparent] contradiction between our Mishnah [and the other Mishnah],<span class="x" onmousemove="('comment',' It is more important to reconcile two Mishnahs than a Mishnah and a Baraitha. ');">¹⁵</span>

אי הכי מאי למימרא מהו דתימא ליחוש דלמא אתרמי שמא כשמא ועדים כעדים קא משמע לן

but why did not R. Zera argue like Rabbah?<span class="x" onmousemove="('comment',' And point out the apparent contradiction between the two Mishnahs (which have the same editor). ');">¹⁶</span>

רב אשי אמר כגון דקא אמר נקב יש בו בצד אות פלונית

— He will answer you: Does our Mishnah teach [expressly], 'But if he says, Give it [to the wife], it is given to her, even after a long time'? It may be that the meaning is: If he says, 'Give it [to the wife]' it is given to her, but only immediately,<span class="x" onmousemove="('comment',' But not if there has been an interval, in which case the bill is not returned. The Mishnah, however, may not have such a case in view at all, as it only says, IT SHALL NOT BE RETURNED, and in this respect an interval would make no difference. Had the Mishnah referred to a case where the bill had to be returned it would probably have made the distinction between 'immediately' and 'after an interval'. It was only the Gemara that derived from the Mishnah, by implication, the law that if the husband wishes to maintain the validity of the bill by saying, 'Give it to the wife,' he may do so even 'after a long time'. ');">¹⁷</span>

ודוקא בצד אות פלונית אבל נקב בעלמא לא

as we have assumed all along.<span class="x" onmousemove="('comment',' There is nothing in the Mishnah to contradict our view of the law as implied in the wording of the Baraitha, which says that the bill shall be returned, and makes no distinction between 'immediately' and 'after a long time'. ');">¹⁸</span>

רב אשי מספקא ליה סימנים אי דאורייתא אי דרבנן

According to the version of him who says that the view of R. Zera is that in a place where caravans are frequent [the document shall not be returned] even if there are no [two persons] known to be [in the place where the document was issued], and that [R. Zera thus] differs with Rabbah — wherein do they differ? — Rabbah holds that when the Mishnah states that 'Every document endorsed by the Court shall be returned',<span class="x" onmousemove="('comment',' Infra 20b. ');">¹⁹</span>

רבה בר בר חנה

it deals with [a document] which was found in Court, and since a Court of law is like a place where caravans are frequent,<span class="x" onmousemove="('comment',' [Read with MS.F. 'and yet it states " it="" shall="" be="" returned,"="" hence="" we="" must="" conclude="" that="" even="" where="" caravans="" are="" frequent="" is="" only="" if="" (two="" persons)="" known="" to="" be,="" etc.']="" ');"="">²⁰</span> [we must conclude that] only if [two persons of the same name] are known to be [in the place where the document was issued the law is that] the document shall not be returned, but that if [two persons of the same name] are not known to be there [the law is that] it shall be returned. And R. Zera?<span class="x" onmousemove="('comment',' How does he explain the reference in the Mishnah to a 'Court of law'? ');">²¹</span> — He will answer you: Does [the Mishnah] state: 'Every document endorsed by the Court, which has been found in Court, shall be returned'? It only states: Every document endorsed by the court shall be returned, — but, in reality, it has been found outside [the Court].<span class="x" onmousemove="('comment',' Where 'caravans are not frequent.' [For where it was found in Court it would be returned having regard to the frequency of caravans there.] ');">²²</span> R. Jeremiah says: [The Baraitha deals with a case] where the witnesses say, 'We never signed more than one bill of divorcement [with the name] of Joseph ben Simeon.'<span class="x" onmousemove="('comment',' Only in such does the Baraitha say that the bill shall be returned. ');">²³</span> But if so — what need is there to tell us [that in such a case the document has to be returned]? — You might say that we ought to apprehend that by a peculiar coincidence the names [of the husband and wife] as well [as the names of] the witnesses were identical [in two bills of divorcement]; therefore we are told [that we do not apprehend such a coincidence]. R. Ashi says: [The Baraitha deals with a case] where [the husband]<span class="x" onmousemove="('comment',' Who admits that the bill is genuine. ');">²⁴</span> says, 'There is a hole near a certain letter,'<span class="x" onmousemove="('comment',' The letter is named by the husband. ');">²⁵</span> and provided [he states] definitely near which letter [the hole is to be found],<span class="x" onmousemove="('comment',' This constitutes a 'precise, distinguishing mark', upon which one may rely even as regards a Biblical law. V. infra 27a. ');">²⁶</span> but if [he just says, 'There is] a hole [in the document,' without indicating the exact place, the document is] not [returned to the wife]: R. Ashi was in doubt whether [the validity of a claim to lost property put forward by one who describes the lost article's] distinguishing marks is [derived from] Biblical law or rabbinical law.<span class="x" onmousemove="('comment',' [If the validity of ordinary distinguishing marks is only of Rabbinic origin, such marks would not be relied upon in the case of a bill of divorcement in view of the grave implications involved.] ');">²⁷</span> Rabbah b. Bar Hanah