We are now beginning the tenth and final chapter of Tractate Bava Basra, known as "Get Pashut". This chapter deals with the laws of creating halachic contracts and the technical details surrounding them - namely, the shtaros (documents). A shtar is a legal document, and is also referred to as a "get". Although the term "get" is usually associated with a bill of divorce, the truth is that it refers to any legal document whatsoever, and this is the intention of our first Mishnah in using this terminology.
Introduction to Contract Law in Halachah:
Shtaros are divided into two fundamentally different types: a shtar kinyan and a shtar rayah (a topic discussed at length in Tractate Gittin and again in Tractate Kiddushin). A shtar kinyan is a document that creates the acquisition itself, while a shtar rayah is a document that records a transaction that has already been executed, so that we will know in the future what occurred and how to enforce the obligations that were accepted.
Shtar Kinyan - There are three basic types, in which the document itself effects the acquisition:
Get of Divorce - The most familiar of them. When a man divorces his wife he gives her the get, and the very receiving of it by her is what makes her divorced. Indeed, it is written in the get that she is no longer his wife and that she is free to go, but what effects the severance of the marriage is the actual receipt of the piece of paper.
Shtar Kiddushin - A woman becomes betrothed not only through money and cohabitation, such as giving a ring or an item of value that effects the betrothal, but even with a document: The husband gives her a paper upon which is written, "Through receiving this paper you are betrothed to me", and her receiving the paper effects the betrothal.
Shtar for Transferring Land - As discussed in the previous chapter regarding the transfer of land. He writes to him in the document: "My field is given to you", and receiving the document in and of itself transfers the ownership, just as it would be done by giving money or through chazakah and an act of acquisition in the field.
Shtar Rayah - The legal event, the transaction, occurred independently without connection to the document, and the document merely records what happened so that it can be enforced in the future. One who borrows a hundred dollars in the presence of two witnesses is obligated to return it, period, and there is no necessity to draw up a contract. The same applies to selling a car: Once a formal, valid act of acquisition is made, the car transfers to the ownership of the buyer and there is no need for a contract at all. However, in order to collect the loan, the lender will want to draw up a contract that will immortalize and record its details - the date of the loan, the conditions of repayment, and the like - and thereby he will be able to enforce the payment in beis din. Therefore, this document is called a shtar rayah: It is intended to serve as proof at a later stage regarding what occurred.
Of course, every shtar kinyan also becomes a shtar rayah after the fact: Once the woman has received her get, she can prove that she is divorced by presenting the get in beis din, and the same applies to a document of ownership over a property, and the like.
Testimony in Shtaros:
All shtaros require testimony in order to have validity, meaning two valid witnesses. Usually, the halachah is that testimony must be delivered orally, as it is stated, "By the mouth of two witnesses" - through the mouths of the two witnesses, and actual speech is required. But there is an exception to this rule, and according to most Rishonim it is an exception min HaTorah: A document upon which there are the signatures of two witnesses is binding as absolute testimony, even though the words are written. That is to say, even though witnesses usually cannot deliver binding testimony in writing, signing a document is binding.
As recalled from Tractate Gittin, it is discussed there at length what gives validity to a get. Certainly, testimony is required regarding the delivery of the get, and there is no doubt about this, but they argued whether eidei mesirah or eidei chasimah - whether the testimony on the delivery of the document, or the witnesses signed on the document itself, are the essential witnesses that provide the validity. However, this topic is beyond the scope of our discussion here.
The document itself may be written in any language. Usually, it will be written in the language of the one making the commitment, who accepts the obligation upon himself - the woman becoming betrothed or the borrower. But it can also be written in the language of the witnesses: Even if the lender and borrower do not speak that language, if the two witnesses speak it, the document can be written in it and they can be signed upon it, and it is valid.
Many diverse halachos were stated regarding the proper manner of writing a shtar, and many of them will be explained in the Mishnayos before us. The basic and main point is that the Sages, in their enactments, sought to create a uniform format according to which shtaros will operate, and thereby prevent or minimize the possibility of fraud and forgery. Therefore, it is obligatory to follow the rules established by the Sages when drawing up shtaros, and for one who does not do so - the document is not binding and is not valid at all. This is a very important matter.
Verbal Loans and Documented Loans:
Someone entering into a loan agreement can do so in one of two ways: a verbal loan or a documented loan. He can make a binding loan verbally - he says in front of two witnesses, "I am lending you here one hundred dollars," and the borrower agrees to return them within one hundred days, and that is sufficient. And he can say: let us write a contract that will obligate you to return the money, and the witnesses sign it and it is kept by the lender - a document of proof that verifies the debt.
There is a clear advantage to a written document over a verbal agreement. If the lender comes to collect his debt, he might have difficulty locating the witnesses - perhaps they died and the like - whereas the document remains valid independently of the witnesses. But beyond that, there are two important halachic differences:
Presumption of non-payment: The lender keeps the promissory note in his hand so that he can collect from the borrower, and as long as the document is in his hand, we assume that the loan has not been paid. Therefore, when Reuven comes to beis din and claims that Shimon owes him money and the promissory note is in his hand, even if Shimon claims, "I returned it to you" - he is not believed. By contrast, with a verbal loan, an oral agreement without a contract, even if there are witnesses that Shimon borrowed the money, if he claims that he paid - Reuven cannot collect a second time. It turns out that the contract accomplishes a very important thing.
Property lien: If one borrows money with a document - his tangible assets, including his land, automatically become liened to that loan. This means that if the borrower cannot pay when the time of payment arrives, the lender may collect from his property. And if the borrower sold the property in the meantime, the lender can come to the new buyer and say: I have a lien on this property, and I am collecting it. And all this is specifically with a document, since the buyer had at least the opportunity to understand that the property was liened and to be careful; but with a merely verbal agreement to return the money - how could he have known? And therefore there is no lien on the property he bought.
Get Pashut and Get Mekushar:
The first Mishnah before us deals with two types of documents, not in a functional sense but in a structural sense - two physical types of documents. The first is called a get pashut, which is the regular and familiar document; and the second is the get mekushar, the tied document. It is a very strange thing, and it no longer has any use, and even in the time of the Mishnah they did not use it. Rather, the Sages sought at the time to create a situation where there would be a document whose preparation is difficult and takes a long time.
And why did they seek this? Because of the kohanim. A kohen who divorces his wife encounters a severe problem if he wishes to take her back. It is not a rare thing - not then and not even today - for a man to divorce his wife and afterward they remarry; but a kohen is forbidden to marry a divorcee, even his own divorcee. Once the kohen divorces his wife with a get, the matter becomes final and he cannot take her back. And since Chazal considered kohanim to be hasty, they sought to slow down the divorce process somewhat, so that the kohen would have time to reconsider the matter and change his mind, and thereby save that family. For this purpose, they instituted the get mekushar - literally a tied get - whose writing takes a long time, and it was designed specifically for kohanim divorcing their wives. And it seems that it even requires three witnesses and the like. And so, while the process of preparing the get drags on and continues, the hope was that the kohen would rethink things and decide not to divorce his wife in the end.
Since the Sages validated the get mekushar for kohanim divorcing their wives, they established thereby that it is a legal structure for a document for any use whatsoever. And again, for a long time now it has ceased to be used, and there is no practical halachic ramification in this Mishnah, at least in the part dealing with the get mekushar; but in the period of the Mishnah, the matter was relevant. Therefore, the Mishnah presents the differences between the get pashut, the regular document, and the get mekushar.
What does the get mekushar look like?
They would write a line of text on a piece of paper, fold it, and the witness would sign on the back of that line, when the document was ready. Afterward, they would write another line of text, fold the paper again, and even a third time - so that there are at least three folds. Ultimately there is a minimum of three signatures on the back, behind the text, and the final shape of the document somewhat resembles a fan.
And in the words of the Mishnah: "Get pashut, edav mitocho" - a regular and standard document, where the witnesses sign within it, meaning on the front, at the bottom of the document or at the bottom of the text on the same side of the page. "Umekushar, edav me'achorav" - in the tied get the witnesses sign on its other side, on the folds in the place where there is text, on the back of the paper.
"Pashut shekasvu edav me'achorav, o mekushar shekasvu edav mitocho, sheneihem pesulin" - a regular document where the witnesses signed on the back, or a tied get where the witnesses signed in the regular manner, at the bottom of the front side of the page - both of these documents are completely invalid. And again, they are invalid because they do not conform to the enactments of Chazal regarding the drawing up of documents.
"Rabbi Chanina ben Gamliel omer: Mekushar shekasvu edav mitucho - kasher, mipnei sheyachol la'asoso pashut" - In his opinion, a tied document that the witnesses signed on the inside is valid in all cases, since it can be made into a simple document: it is sufficient to undo the stitching that tied it and straighten out the paper, and then we have a page where the document is written on the front, like any regular document, and the signatures are at the bottom, like any regular document. However, the Talmud does not agree with this, since ultimately the document was not made the way it should have been made.
He requested a document from the scribe and the scribe changed it:
Even though this sounds like a continuation, it is not a continuation but a new point: what is the law when a person asks a scribe to write a document for him and specifies his request - that it should be written, for example, as a tied document - and the scribe wrote it as a simple document, or vice versa. The opinion of the Tanna Kamma, which is not mentioned here explicitly but this is his view, is that the document is invalid, since it is clear that the person who requested it was very particular about this - and that is why he requested it - and since the scribe violated his request, the document is invalid.
"Rabban Shimon ben Gamliel omer: Hakol keminhag hamedinah" - This matter depends on the location. In a place where people use a simple document and a tied document equally, even if the person who requested it asked for a specific type, he was not truly particular about it but rather followed the accepted practice, and therefore the document is not invalid. According to the Tanna Kamma, however, it is invalid. The halachah is apparently in accordance with the Tanna Kamma, but practically speaking, this has no application nowadays, not in the Shulchan Aruch or similar works, with regard to a tied document.