סוגיית טענינן דמזוייף
The Mishnah on דף ב. ends off saying that if people come to be me’ar’er against the get, claiming that it is forged, you should be me’kayem it with the signatures.
/תוס' ד"ה ואם יש עליו עוררין/
If one has a get and no one has to come to be me’ar’er, it is valid and the woman can remarry with it. We don’t tay’nah that it is mezuyaf because the Rabanan established this to be lenient for an agunah (a woman in chains). However, by mammon we do tay’nah mezuyaf for yetomim and lekuchot because otherwise, “Lo shavkat chayaei l’chol be’riah”- someone can take advantage of them by forging shtar, and getting “edim” to sign it. There would be no defense for this otherwise. The Maharam Shif explains that this rule is applied to all sharot, even if “Lo shivkat chayei” doesn’t apply (לא פלוג).
"ומיהו מזה אין להוכיח"- The Maharam explains, from “Lo shivkat chayei” we cannot bring a proof that we do tay’nah mezuyaf. It’s not even a common thing (דבר לא שכיח הוא), and we don’t tay’nah uncommon things for yetomim. Rather, we can tay’nah paru’ah (it was already paid)!
What is the nafka minah whether we tay’nah mazuyaf or paru’ah? The Maharam says that there could be a case where paru’ah wouldn’t work. If a lo’ve dies b’toch zmano, meaning before the deadline for paying back the loan, then we have a chazakah that he wouldn’t have paid it back then so we can’t tay’nah paru’ah. Also, if a lo’ve travels to medinat hayam and remains abroad until after the deadline for the loan. The Maharam Shif says that paru’ah is more common (מצוי טפי), so it works better.
The Pnei Yehoshua has a kashya on the Maharam’s nafka minah. What would stop a person from forging a shtar which says that the lo’ve died b’toch zmano?
The Achronim have a kashya on Tosfot; how can you say that we tay’nah paru’ah, it’s not common when there is a case of "שטרך בידי מאי בעי"?
According to the Chatam Sofer, beit din can only claim something when there is a ta’anah, and there is a chiluk between whether there is no tay’nah and whether there is an inhibited tay’nah. By mezuyaf there is no tay’nah. By paru’ah there is a ta’anah, but it is blocked. The etzem ma’aseh of paying back a loan b’toch zmano is not common. But the ta’anah that it was paid back afterwards is a real ta’anah; it is simply blocked by the fact that the shtar is on the malveh’s hands.
Rav Shmuel Rizovsky (Reb Chaim & Reb Shimon Shkop) says that from "שטרך בידי", it seems that the shtar is a ra’ayah. But it’s not a proof of the metziut. It is a halachah which tell us that while paru’ah is common, it’s blocked by שטרך בידי. This leaves us with the problem that we can’t ta’anah paru’ah against שטרך בידי מאי בעי. Tosfot continues, that even if we don’t tay’nah mezuyaf, we tay’nah paru’ah because of “migo.” Since the father could have said that the shtar is mezuyaf but didn’t, we believe him that it is paru’ah. The Gemara in Bava Batra דפ' ע.-ע:)) says that by a shtar kis, the malveh can come and swear that he loaned money and claim money from yetomim. In this case he takes half of the money. The other half of the money that went into an investment he can’t take, since we tay’nah that it is paru’ah. The father would have been believed to say that he repaid it with the migo of ne’ensu, that it was lost or destroyed (פרוע במגו דנאנסו).
But we can still prove that we tay’nah mezuyaf, for if not so, any person could forge a shtar mecher or matanah and try to use it in order to claim money from yetomim or lekuchot. In such a case we could not tay’nah paru’ah.
Furthermore, from Bava Batra דף קעד: we see that we ta’ynah mezuyaf:
Rav Hunah says that if a schiv me’rah is makdish his property and says, “I have money that belongs to ploni,” we believe him. There is a chazaka that people don’t make a joke of hekdesh. Rav and Shmuel say that if the person says “t’nu,” “give him the money,” then the children must pay the man. But if he doesn’t say “t’nu” they don’t pay. When the schiv me’rah says that he has someone else’s money, he is modeh that there is a shtar. “T’nu” acts as a kiyum ha’get, whereas not saying it allows us to tay’nah that it is mezuyaf. If we didn’t, then the malveh would be able to take money from the yetomim. We don’t tay’nah paru’ah because Rav says that if the lo’ve is modeh to the shtarit doesn’t need kiyum (מודה בשטר שכתבו אין צריך קיום).
There is an apparent stira in Tosfot. Earlier, Tosfot stated that we don’t necessarily need ta’yninan mezuyaf because we can tay’nah paru’ah. This last step in Tosfot (Rav explaining why the Gemara in Bava Batra has to be talking about mezuyaf and not paru’ah) says that without mezuyaf, there is no paru’ah? There are two ways to ask a question based on this stira:
The Maharam explains that if the first step is true and we do have paru’ah even without mezuyaf. The later statement is not true and it must be that we don’t hold like Rav.
The Maharsha says the opposite. The second statement is true and that we have a kashya on the first one.
[Rebbe Akiva Eger asks an additional question on the second proof from Bava Batra.]
The Gemara in Bava Metzia דף יג. says, if we find a shtar with no lean (שטר שאין בו אחריות), the Rabbanan says not to return it to the malveh and R’ Meir says we do return it. Shmuel established that when one who is not actually chayav is modeh to the shtar, R’ Meir says to return just so he can have it; it’s useless. But according to the Rabbanan, why would we not return it? Why should we be choshesh? If the shtar is mekuyam, then the din is with him. If not then what loss is there if we give it back? Rather, we are choshesh that perhaps he will take the shtar and use it when the lo’ve isn’t there and we can’t tay’nah mezuyaf. But this can’t be! We could still tay’nah paru’ah!
The Gemara in Bava Batra דף קנד: says, according to R’ Meir if he is modeh to the shtar, it still needs kiyum. And the father would have been believed to say paru’ah because of a migo d’mezuyaf. So the yetomim can make a migo based on what the father would have said. So even if beit din doesn’t tay’nah mezuyaf, they do tay’nah paru’ah migo d’mezuyaf.
So how do we resolve the kashya on the Rabbanan? Tosfot says that the case is actually when the malveh drops the shtar (איתרע בנפילתו). Also, only when the shtar falls and the lo’ve is tay’nah mezuyaf! If he is to’en after the malveh picks it up, then it doesn’t do anything.
Tosfot says that only when the lo’ve is to’en mezuyaf before the malveh is mekayem does the din of itrah (איתרע) apply; but if the malveh was mekayem before the lo’ve was to’en mezuyaf, then ichzak kasher and he can collect.
Rav Shmuel Rizovsky writes that the reason the tay’ninan mezuyaf of beit din doesn’t work is because they are only to’en she’ma mezuyaf, and only the tay’nat bari mezuyaf of the lo’ve works against the kiyum of the malveh.
Rav Shmuel then asks why it is only huchzak kasher; that means that it is still itrah. If so, why does the shtar still work?
He gives two tei’rutzim:
First, the Brisker Rav says that midin shtar, there is no issue of itrah, and it is a perfectly good shtar. The problem is one of Hashavat Aveida since you need to be totally sure that the shtar is really his to give it back. The fact that it is itrah brings in a safek. Therefore, you would give it back if he was mekayem it (before tay’nat mezuyaf shel lo’ve) because then it would be huchzak shelo. But if the finder returned it, mistama he could be goveh (nafka minah with Rav Shmuel Rizovsky).
Rav Shmuel then writes his own opinion that the din of shtar which protects it against ir’ur is only applicable when the shtar is biyad hato’en. But without that, it isn’t self protecting. If so, here where it isn’t huchzak shelo, and therefore not self protecting, it can’t stand up against the ir’ur halo’ve (therefore, even if he got it back still not huchzak shelo, so it’s still pasul).
"ומיהו מזה אין להוכיח"- The Maharam explains, from “Lo shivkat chayei” we cannot bring a proof that we do tay’nah mezuyaf. It’s not even a common thing (דבר לא שכיח הוא), and we don’t tay’nah uncommon things for yetomim. Rather, we can tay’nah paru’ah (it was already paid)!
What is the nafka minah whether we tay’nah mazuyaf or paru’ah? The Maharam says that there could be a case where paru’ah wouldn’t work. If a lo’ve dies b’toch zmano, meaning before the deadline for paying back the loan, then we have a chazakah that he wouldn’t have paid it back then so we can’t tay’nah paru’ah. Also, if a lo’ve travels to medinat hayam and remains abroad until after the deadline for the loan. The Maharam Shif says that paru’ah is more common (מצוי טפי), so it works better.
The Pnei Yehoshua has a kashya on the Maharam’s nafka minah. What would stop a person from forging a shtar which says that the lo’ve died b’toch zmano?
The Achronim have a kashya on Tosfot; how can you say that we tay’nah paru’ah, it’s not common when there is a case of "שטרך בידי מאי בעי"?
According to the Chatam Sofer, beit din can only claim something when there is a ta’anah, and there is a chiluk between whether there is no tay’nah and whether there is an inhibited tay’nah. By mezuyaf there is no tay’nah. By paru’ah there is a ta’anah, but it is blocked. The etzem ma’aseh of paying back a loan b’toch zmano is not common. But the ta’anah that it was paid back afterwards is a real ta’anah; it is simply blocked by the fact that the shtar is on the malveh’s hands.
Rav Shmuel Rizovsky (Reb Chaim & Reb Shimon Shkop) says that from "שטרך בידי", it seems that the shtar is a ra’ayah. But it’s not a proof of the metziut. It is a halachah which tell us that while paru’ah is common, it’s blocked by שטרך בידי. This leaves us with the problem that we can’t ta’anah paru’ah against שטרך בידי מאי בעי. Tosfot continues, that even if we don’t tay’nah mezuyaf, we tay’nah paru’ah because of “migo.” Since the father could have said that the shtar is mezuyaf but didn’t, we believe him that it is paru’ah. The Gemara in Bava Batra דפ' ע.-ע:)) says that by a shtar kis, the malveh can come and swear that he loaned money and claim money from yetomim. In this case he takes half of the money. The other half of the money that went into an investment he can’t take, since we tay’nah that it is paru’ah. The father would have been believed to say that he repaid it with the migo of ne’ensu, that it was lost or destroyed (פרוע במגו דנאנסו).
But we can still prove that we tay’nah mezuyaf, for if not so, any person could forge a shtar mecher or matanah and try to use it in order to claim money from yetomim or lekuchot. In such a case we could not tay’nah paru’ah.
Furthermore, from Bava Batra דף קעד: we see that we ta’ynah mezuyaf:
Rav Hunah says that if a schiv me’rah is makdish his property and says, “I have money that belongs to ploni,” we believe him. There is a chazaka that people don’t make a joke of hekdesh. Rav and Shmuel say that if the person says “t’nu,” “give him the money,” then the children must pay the man. But if he doesn’t say “t’nu” they don’t pay. When the schiv me’rah says that he has someone else’s money, he is modeh that there is a shtar. “T’nu” acts as a kiyum ha’get, whereas not saying it allows us to tay’nah that it is mezuyaf. If we didn’t, then the malveh would be able to take money from the yetomim. We don’t tay’nah paru’ah because Rav says that if the lo’ve is modeh to the shtarit doesn’t need kiyum (מודה בשטר שכתבו אין צריך קיום).
There is an apparent stira in Tosfot. Earlier, Tosfot stated that we don’t necessarily need ta’yninan mezuyaf because we can tay’nah paru’ah. This last step in Tosfot (Rav explaining why the Gemara in Bava Batra has to be talking about mezuyaf and not paru’ah) says that without mezuyaf, there is no paru’ah? There are two ways to ask a question based on this stira:
The Maharam explains that if the first step is true and we do have paru’ah even without mezuyaf. The later statement is not true and it must be that we don’t hold like Rav.
The Maharsha says the opposite. The second statement is true and that we have a kashya on the first one.
[Rebbe Akiva Eger asks an additional question on the second proof from Bava Batra.]
The Gemara in Bava Metzia דף יג. says, if we find a shtar with no lean (שטר שאין בו אחריות), the Rabbanan says not to return it to the malveh and R’ Meir says we do return it. Shmuel established that when one who is not actually chayav is modeh to the shtar, R’ Meir says to return just so he can have it; it’s useless. But according to the Rabbanan, why would we not return it? Why should we be choshesh? If the shtar is mekuyam, then the din is with him. If not then what loss is there if we give it back? Rather, we are choshesh that perhaps he will take the shtar and use it when the lo’ve isn’t there and we can’t tay’nah mezuyaf. But this can’t be! We could still tay’nah paru’ah!
The Gemara in Bava Batra דף קנד: says, according to R’ Meir if he is modeh to the shtar, it still needs kiyum. And the father would have been believed to say paru’ah because of a migo d’mezuyaf. So the yetomim can make a migo based on what the father would have said. So even if beit din doesn’t tay’nah mezuyaf, they do tay’nah paru’ah migo d’mezuyaf.
So how do we resolve the kashya on the Rabbanan? Tosfot says that the case is actually when the malveh drops the shtar (איתרע בנפילתו). Also, only when the shtar falls and the lo’ve is tay’nah mezuyaf! If he is to’en after the malveh picks it up, then it doesn’t do anything.
Tosfot says that only when the lo’ve is to’en mezuyaf before the malveh is mekayem does the din of itrah (איתרע) apply; but if the malveh was mekayem before the lo’ve was to’en mezuyaf, then ichzak kasher and he can collect.
Rav Shmuel Rizovsky writes that the reason the tay’ninan mezuyaf of beit din doesn’t work is because they are only to’en she’ma mezuyaf, and only the tay’nat bari mezuyaf of the lo’ve works against the kiyum of the malveh.
Rav Shmuel then asks why it is only huchzak kasher; that means that it is still itrah. If so, why does the shtar still work?
He gives two tei’rutzim:
First, the Brisker Rav says that midin shtar, there is no issue of itrah, and it is a perfectly good shtar. The problem is one of Hashavat Aveida since you need to be totally sure that the shtar is really his to give it back. The fact that it is itrah brings in a safek. Therefore, you would give it back if he was mekayem it (before tay’nat mezuyaf shel lo’ve) because then it would be huchzak shelo. But if the finder returned it, mistama he could be goveh (nafka minah with Rav Shmuel Rizovsky).
Rav Shmuel then writes his own opinion that the din of shtar which protects it against ir’ur is only applicable when the shtar is biyad hato’en. But without that, it isn’t self protecting. If so, here where it isn’t huchzak shelo, and therefore not self protecting, it can’t stand up against the ir’ur halo’ve (therefore, even if he got it back still not huchzak shelo, so it’s still pasul).
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