[In the case of] a court of law, one can well understand,1 because it has the power and authority to confiscate2 money;3 but [as regards] witnesses, who had once performed their mission,4 [how could they] perform their mission again?5 — But [can they] not? Surely Rab Judah said in the name of Rab: Witnesses may write even tell [successive]6 deeds in respect of one field! — R. Joseph replied: [This7 is permitted only] in [the case of] a deed of gift.8 And Rabbah replied: [Even] in [the case of] a deed [of sale] which does not contain [the clause] pledging [property].8
What [was that] Baraitha?9 — It was taught: If [a creditor] was claiming from [a debtor] a thousand zuz and he repaid five hundred zuz of these, the witnesses [may] tear up the bond and write for him another deed bearing the original date;10 so11 R. Judah. R. Jose said: This deed must remain where it is. and a quittance is to be written.12 And for two reasons has it been said [that] a receipt was to be written. Firstly13 in order that he be compelled [thereby]14 to repay [the debt] and secondly15 in order that [the debt] may be collected from [property sold] since the original date.
But R. Judah also said, 'bearing the original date'!16 — This17 is what R. Jose said to R. Judah: If you mean, 'bearing the first date', I disagree with you for one [reason];18 if you mean 'bearing the second date' 'I disagree with you for two [reasons].
Our Rabbis taught: A deed the date of which19 is a Sabbath or the Tenth of Tishri20 is [regarded as] a postdated deed21 and is valid.22 So R. Judah. R. Jose [declares it to be] invalid.23 Said R. Judah to him: Was not [such24 a deed] actually brought before you at Sepphoris and you declared [it] to be valid? [R. Jose] replied to him: When I declared [it] to be valid, I declared [it] in that [case only].25 But, surely. R. Judah also speaks of such [a deed]!26 — R. Pedath replied: All27 agree that if the date of the deed was calculated and it28 was found to coincide exactly with a Sabbath day or the Tenth of Tishri, it is a postdated deed and is valid.29
Original footnotes renumbered.
- Why it may tear up a deed and insert its date in the one given in exchange.
- Lit., 'to take Out'.
- A deed entitled its holder to seize any real estate which the debtor had sold to mortgaged after, but not before the date of the deed. Consequently. when a now deed is written for the balance of a debt in exchange for the original deed, the creditor should not be entitled to seize any property that was sold between the date of the original and that of the new deed. A court of law, however, having the right to confiscate any property. Is also empowered to enter in the second deed the date of the original and thus to subject to the creditor's seizure property to which he would not otherwise have been entitled.
- OF writing and signing the first deed.
- What authority have they for inserting the date of the original deed and to confer thereby upon the creditor privileges to which his new deed would not otherwise have entitled him?
- If the holder has lost the previous ones.
- The issue by witnesses of a second, or subsequent deed bearing the date of the original one.
- Such a deed does not entitle its holder to the seizure of any property, and the date is therefore, of no consequence.
- Referred to supra 170b.
- Lit., 'from the first time'.
- Lit., 'the words of'.
- for the five hundred zuz paid.
- Lit., 'one' '
- Owing to the trouble he has to take in preserving the quittance.
- Lit., 'one'.
- What point, then, is there in R. Jose's second reason?
- Lit., 'thus'.
- The first reason, that the debtor may be compelled to repay the loan.
- Lit., 'the time of which is written', i.e.. a certain date is given which, on calculation is Fund to be one of the following.
- Writing is forbidden on the Day of Atonement, as on the Sabbath.
- Since it is obvious that it was not written on the Day of Rest or the Day of Atonement, it is assumed to have been written on a previous day, and post dated so as not to invalidate without any proof the deed (Rashb.)
- According to R. Judah, any postdated deed is valid even though the contents do not show that it was postdated; much more so in this case where it is obvious (cf. p. 748 n. 16) that it was postdated.
- Cf. explanation in the Gemara, infra.
- I.e., postdated.
- When the date of the deed is a day on which writing is forbidden, from which it would be obvious to all (cf. loc. cit. n. 16) that It was postdated. No one, therefore, could possibly be misled by the date, and no confusion or loss would arise. Any other postdated deed, however, the contents of which do not clearly show that it is postdated, (i.e.. where the date is an ordinary working day). and which might consequently be mistaken for one written on that very date, and thus cause confusion or loss, is regarded by R. Jose as invalid.
- Why. then, was it stated that It. Jose declares it to be invalid?
- It. Judah and R. Jose.
- Lit., 'its date'.
- V. p. 748, n. 16, 4.
Baba Bathra 171b
They are in disagreement only in [the case of] an ordinary Postdated deed,1 [in] which [case] R. Judah follows his own view, according to which2 no quittance is written,3 and consequently no loss4 would ensue,5 while R. Jose follows his view according to which a quittance may be written and loss might consequently ensue.6 R. Huna son of R. Joshua said: Even according to him who said [that] a quittance may be written, this may be done only7 for a half,8 but not for the whole [of the debt].9
And [the law is] not so, but10 even for the full amount of a debt11 [a quittance] may be written; as in the case of R. Isaac b. Joseph. He claimed [a sum of] money from R. Abba whom he sued12 before R. Hanina b. Papi. [When] he13 said to him,14 'Give me my money', [the other] replied to him, 'Return to me my deed and you will receive your money'. 'I lost your deed', said [R. Isaac] to him, '[but] I will write for you a quittance'. 'Surely', the other replied to him, 'It was both Rab and Samuel who said [that] no quittance was to be written'.'[Were] one [to] give us of the dust of Rab and Samuel', he13 exclaimed, 'we should put it into our eyes;15 but it was both R. Johanan and Resh Lakish who stated [that] a quittance is to be written'.16
Similarly, when Rabin came17 he stated in the name of R. Elai [that] a quittance may be written. And it stands to reason that a quittance may be written; for should it be assumed [that] a quittance must not be written, [is it conceivable that where] the bond of this one18 was lost, the other should eat19 and enjoy himself!
Abaye demurred: What then; is a quittance to be written? Should this one,20 [if] the quittance of the other was lost, eat and enjoy himself? 'Yes', replied Raba to him, 'the debtor21 is the slave of the creditor'.22
Elsewhere We learnt: Antedated bonds of indebtedness are invalid23 and postdated [ones] are valid.24 Said R. Hamnuna: This law applies only to25 bonds of indebtedness but [in the case of] deeds of purchase and sale even [those which are] postdated are invalid. What is the reason? [A person] might sometimes sell [a plot of] land to another in Nisan and write [the deed] for him in Tishri; and in the meantime he might obtain some money and repurchase it from him.26 But when Tishri arrived he27 would produce it28 and say, 'I have [subsequently] bought it from you again'.29 If so, [in the case of] bonds of indebtedness also, one might sometimes borrow [money] in Nisan and write the bond for the creditor30 in Tishri, and in the meantime he would obtain some money and repay him. When [however the debtor] requested the return of his31 bond, he would reply to him, 'I lost it', and would [instead] write out for him a quittance. When [later] the date of payment32 arrived he would produce it33 and plead 'You have borrowed from me just now!' — He34 holds the opinion that no receipt is to be written.35
Said R. Yemar to R. Kahana, and others say [that] R. Jeremiah of Difti said to R. Kahana: But [what of] the present time, when postdated deeds are written though quittances also are written?36 He replied to him:37 [This is permissible] since the time when R. Abba said to his scribes: 'When you write a postdated deed, write as follows: This deed was not written on the date indicated38 but was postdated.'39
Said R. Ashi to R. Kahana: And [what of] the present time when this is not done!40 — [This41 is not necessary] since R. Safra instructed his scribes: When you write out quittances, enter the date of the deed42 if you know it; if not, leave the quittance undated so that whenever [the deed] is produced [the receipt] will render it invalid.43
Said Rabina to R. Ashi, and others say [that] R. Ashi [said] to R. Kahana:
Original footnotes renumbered.
- The date of which is that of a working day and dies not, consequently, prove that the deed was postdated.
- Lit., 'who said'.
- Where the debtor repaid a part of the loan or the whole of It and the creditor lost the deed.
- To the debtor.
- Since the deed would be returned to him on his repayment of the debt, or would be exchanged for a second deed should he pay a portion only of the debt.
- The creditor, after giving the debtor a quittance for his repayment of the loan, might produce the postdated deed (the date of which is later than the date of the quittance) and thereby claim his loan again. pleading that the quittance was given for an earlier loan. As the Fact that the deed is postdated could not be proved, the debtor would be the loser having to repay rise same loan twice. In the case, however, where the date coincides with a sacred day, on which no writing is permitted, the creditor's fraud would be detected. (Cf. p. 748. n. 16 and supra n. 4).
- Lit., 'these words'.
- I.e., where the debtor repaid a part of the debt only and desires to have evidence of payment.
- It is the creditor's own fault if he lost the bond. He must either produce the bond or forfeit the loan.
- Cf. Bail, a.l.
- Lit., 'on all of it'.
- Lit., 'he came'.
- R. Isaac.
- R. Abba.
- Out of respect and reverence for their memory.
- Despite the greatness of the departed Masters, the law is in accordance with the ruling of R. Johanan and R. Lakish.
- From Palestine to Babylon.
- The creditor.
- Consume other people's money.
- The creditor.
- Since he has the benefit of the transaction.
- Hence he must beat the burden of preserving the receipt.
- Since a creditor, who is justly entitled to seize any real estate sold by the debtor after the date of the loan, might fraudulently lay claim to lands which the borrower had sold between the date entered in the bond and the actual date of the loan, by pleading that the earlier date in the deed was the actual date of the loan.
- Though the creditor is thereby prevented from seizing any of the debtor's property that was sold between the actual date of the loan and the date in the deed. By allowing the entry of the later date he is assumed to have voluntarily surrendered his right upon such lands as were sold during the period intervening between the two dates, Sheb. X. 5.
- Lit., 'they did not teach but'.
- Without having the deed of sale returned to him, the buyer having asserted that he lost it.
- The buyer.
- The postdated deed.
- Even the document which the buyer might have given to the seller as confirmation of his to.purchase would be of no avail, since its date is earlier than the one which appears on the postdated bill of sale, and the former could, therefore, plausibly claim that after the to purchase by the seller the land was sold to him again.
- Lit., 'for him'.
- Lit., 'and said to him, give me my'.
- Lit., 'its time'.
- The postdated deed.
- R. Hamnuna.
- The creditor must return the bond itself before he can receive repayment of the debt.
- How, in view of what has been said above, could a postdated deed be permitted where a receipt also is allowed?
- for this reading. v. Rashb., R. Gersh. and BaH, a.l.
- Lit., 'in its time'.
- Lit., 'we delayed (or postponed) it and wrote it.'
- No formula such as that introduced by R. Abba is entered in a postdated deed, though the writing of a quittance is permitted!
- R. Abba's formula.
- I.e., the quittance must not only contain the names of the creditor and debtor as well as the amount of the loan, but also the date of the bond in lieu of which the quittance is given. Consequently should the creditor ever attempt to make use of the cancelled bond because it was postdated the debtor would be in a position to expose him by means of the quittance in which the date of that bond is entered.
- Since the receipt is undated and contains all the particulars (such as names of parties and amount) of the bond, it can be used by the borrower against the creditor whenever the latter should attempt to advance a claim by means of that bond. Whether the date of the bond is earlier, or later than that on which the quittance was written matters little, since the quittance, being undated, can always be presented as a document written after the date of the bond. The issue of such an undated quittance, however, would naturally preclude the creditor from ever lending the debtor a sum equal to that in the bond in question.