Gezelah va'Avedah - Chapter 18

Neither to the creditor, so that he can use it to collect the debt, nor to the debtor.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 65:6) adds three other factors:
a) Even if the promissory note contains a clause stating that the debtor accepts the creditor’s word;
b) Even if the date on which the loan is due has not arrived; and
c) Even if the creditor or the debtor can identify the note with a very exact mark.
Despite all these factors, the promissory note should not be returned, because of the suspicions mentioned by the Rambam.

For the debtor alone, and no one who purchased his property, will be held responsible for the debt.
The Shulchan Aruch (Choshen Mishpat 65:7) states that if the debtor owns other landed property that has not been sold, which is equivalent to the value of the promissory note, the note may be returned. For in this instance, it is unlikely that the people who purchased the debtor’s property will be forced to accept this obligation.

The very fact that the promissory note was lost leads to the conclusion that it had been repaid. For otherwise, the creditor would not have been careless about it (Bava Metzia 16b).

Every promissory note should be dated, so that the date on which the obligation was made is recorded.

The Maggid Mishneh questions why, in this instance, it is necessary that the signatures of the witnesses be validated. Note Sefer Me’irat Einayim 65:22 and the Siftei Cohen 65:23, which discuss this issue.

For it is very uncommon for a loan to be repaid on the day that it was taken. Thus, we assume that the note was dropped by the creditor, and the debt is still outstanding. Moreover, if the debtor had desired, he could have had a new promissory note written for the creditor for this same date.

I.e., either the creditor or the debtor.

In the previous halachot, it was not acceptable for the claimant to identify the promissory note itself via a mark, for we are certain that he once had the note in his possession and could have seen any sign of identification. In this instance, however, he is not identifying the promissory notes, but rather their container.

In this instance, the number of promissory notes, or the manner in which they are connected can serve as a means of identification.

Based on the comments of Rabbenu Yerucham, the Ramah (Choshen Mishpat 65:11) rules that even two documents from the same borrower (or the same lender) are sufficient for the rules mentioned in this halachah to apply.

This applies even if a lender cannot identify one of the promissory notes by a mark. The fact that the three notes are found together is conclusive evidence that they fell from the borrower’s hand [Shulchan Aruch (Choshen Mishpat 65:11)].

In this instance, since there is a rationale that can explain why the three notes were found together, the borrower is required to identify the notes before they are given to him, and the lenders are also given the prerogative of doing so.

The Rambam’s wording is somewhat confusing, because he mentions both a scribe and a judge. The validation of a legal document involves both, for a judge must supervise the validation process, but a scribe is the one who actually writes out the validation. Indeed, some of the authoritative manuscripts of the Mishneh Torah substitute “scribe” for “judge.”

For the evidence leads to the conclusion that the lender dropped them [Shulchan Aruch (op. cit.)].

The borrower or the lender.

Neither to the borrower nor to the lender. It should not be returned to the borrower, because the fact that it was not torn indicates that it might not have been paid. It should not, however, be given to the lender either, for the fact that it is found among the torn documents indicates that it was probably paid.

The Ra’avad objects to the Rambam’s ruling, stating that Bava Metzia 18a and Gittin 27a mention certain conditions that must be fulfilled for a bill of divorce to be returned. The Maggid Mishneh states that the Rambam has already dealt with these issues in Hilchot Gerushin 3:10-12. In these halachot, he is speaking only about the dimensions of the law that parallel the discovery of a lost object.

And the woman is considered as having been divorced. The rationale is that if the husband desires, he can divorce her now. We do not suspect that he would have a bill of divorce given to her if the divorce had not been carried out, for that would not be of any benefit to him.
Our Rabbis note that there is also a financial dimension to a bill of divorce, for on this basis the woman can demand payment of the money due her by virtue of her marriage contract. Also, if her husband sold the proceeds of her property after her divorce, she may expropriate them from the seller. The Rabbis, however, explain that the bill of divorce should be returned because its primary purpose is to enable the woman to remarry. If she tries to collect money from others afterwards, she will be required to prove when the bill of divorce entered her possession (Bava Metzia 19a).

For, as the Rambam continues to explain, this indicates that the bill of divorce was given to her.

The bill of divorce was obviously once in the husband’s possession. Hence, the fact that he can recognize it is not significant for us. What is significant is that the woman can recognize it.

The wording used by the Rambam has attracted the attention of the commentaries. As explained in the notes on Chapter 13, Halachot 3-5, there are three category of marks: simanim muvhakim b’yoter (extremely distinctive marks), simanim muvhakim (distinctive marks), and simanim g’ru’im, “unsatisfactory marks.” Here the Rambam uses the term “distinctive marks,” yet he mentions “a hole next to a letter,” which is considered a very distinctive mark. This lends credence to the Kessef Mishneh’s explanation that with regard to prohibitions, it is only upon “very distinctive marks” that the Rambam allows us to rely.

Perhaps she saw it tied with this string in her husband’s possession. The position of a hole in a specific place, by contrast, indicates that she closely examined the document, and that would be likely only if it had already been given to her.

For the woman may know that her husband keeps his legal documents in such a container.

If on the basis of this document, the servant claims that his master owes him money, and he desires to expropriate property that had been sold to others, he is required to prove the date on which the bill of freedom was given to him [Shulchan Aruch (Choshen Mishpat 65:13)].

Although he admits having had the document composed, he claims that he had not given it yet, and the servant remains his property.

I.e., he regrets having made the sale or given the present.

In this instance, the latter sale or present would be invalidated.
The Ramban and the Rashba maintain that if the document states that the present was formalized by an act of contract, the document should be retumed to the recipient. Rabbenu Chanan’el, Rashi and the Ri Migash maintain that this is not sufficient, and the recipient must prove that the document reached his possession. The Shulchan Aruch (Choshen Mishpat 65:10) follows the former view.

This convention, also known as an oral will, was established by our Sages in order to allow a person to divide his property before his death without extensive difficulty.

Thus, there is nothing to lose by returning the document to the first recipient. For if the dying person desires to change his mind, he has that option. For that same reason, if he does not acknowledge the note, we do not return it. For this surely indicates that he has withdrawn his desire to give the person the present.

Hilchot Zechiyah UMatanah 9:16.

For it will appear that the heir had no right to sell the property, since it was never rightfully his.

I.e., the debtor.
The commentaries explain that we do not suspect that perhaps the original creditor sold the promissory note to another person and now is conspiring with the debtor to deceive that person. Although we do hold similar suspicions in other instances, this instance is an exception, because the creditor has the right to waive payment of a promissory note even after selling it to another person. Therefore, he gains nothing by acknowledging the receipt.

For example, the creditor claims that he prepared the receipt in the event that the debt would be paid, but that it was never paid.

I.e., the marriage contract is considered an ordinary promissory note (Maggid Mishneh).

Since that property is on lien to the marriage contract, the woman would be able to expropriate it from the purchaser.

See Hilchot Yibbum VaChalitzah 4:29-30.

See Hilchot Gerushin 11:10-11.

See Hilchot Malveh V’Loveh 24:1.

E. g., a document recording a court’s decision to expropriate property belonging to a debtor for a creditor.

I.e., one may even expropriate property that has been sold or given as a present.
The Ra’avad differs with this ruling, maintaining that this law applies only if the finder returns the document without its discovery becoming public knowledge. If, however, it becomes known to a court or even to witnesses that a legal document has fallen, and the law is that such a document should not be returned, then the document is no longer acceptable in court. The Shulchan Aruch (Choshen Mishpat 65:16) quotes both opinions without stating which one is favored.