Bava Basra, chapter 10, mishnah 3. The subject of the next two mishnayos is who is required to give his consent for the writing of a legal document, and who bears the payment for it. The mishnah again uses the word "get" in the sense of a general legal document, as we have already seen above.
Every legal document comes to document an agreement between two parties, and seemingly both parties should agree to its writing in one way or another. Our mishnah brings cases in which the consent of only one of the parties is sufficient, whereas the following mishnah will teach that there is a need for the consent of both parties. Two rules guide this topic:
The consent: If the document is liable to cause one of the parties a loss of rights or money, his consent is required for its writing. If he has nothing to lose from the very existence of the document, there is no need for his consent.
The payment: The primary beneficiary of the document is the one who bears the payment for it. In a sales transaction, the one who performs the acquisition - the buyer - is considered the primary beneficiary, and therefore he is the one who pays.
What is "the writing of a document":
This point is liable to mislead in the understanding of the entire mishnah. Seemingly, what is the big deal that a document is written? Any person can write or print a paper in his home. Rather, the intention of the mishnah is not merely the writing by a scribe alone, but that two witnesses sign the document and give it validity. The witnesses serve as a sort of notary public, confirming that we have a valid document before us, and thus the document becomes potentially valid - and consequently has the ability to cause harm.
An example of this can be seen at a wedding: they write the kesubah, fill in its details, and two witnesses sign it - but the kesubah has not yet been delivered, and therefore it is not an actual kesubah but a kesubah waiting to be implemented. Nevertheless, the signing of the witnesses has already turned it into a binding document. This is also the case in the mishnayos before us.
While the signing of the witnesses on the kesubah does not give the woman a legal right to claim the two hundred zuz if her husband dies, since he has not yet delivered it to her; nevertheless, the signatures are what make it a valid kesubah, and consequently it can be delivered into her hands. We will discuss matters of kesubos in the next mishnah. The point here is that we are dealing with documents that the signing of the witnesses brings to life and grants validity, and therefore, if the document is liable to act to a person's detriment, his consent is required not only before the writing of the document, as the language of the mishnah states, but even before the signing of the witnesses on it.
"Kosvin get le'ish af al pi she'ein ishto imo" - they write a bill of divorce for a man even though his wife is not with him:
The scribe and the witnesses are permitted to write the get and sign it even though the woman being divorced is not present and does not give her consent. The reason: according to the position of the mishnah, a man can divorce his wife against her will, and there is no need for her consent. Consequently, she is not required to consent to the writing of the get: the husband writes it not in her presence, and he only has to deliver it into her hand after it is written and signed.
"Vehashover la'ishah" - and a receipt for a woman:
It is permitted to write a receipt - a sort of proof of payment - for the woman, even though the husband does not know about this and does not give his consent. The background for this: when the woman receives her get, she must present the kesubah document and receive the two hundred zuz. She hands over the kesubah, receives the money, and the husband tears the document, so that she will not be able to claim the sum from him again.
But what is the law when the kesubah is lost? The husband will claim: "I am not giving you two hundred zuz until you hand over the kesubah to me, because otherwise I am exposed to a claim." In such a case the woman will write a receipt, in which it is stated that the two hundred zuz of her kesubah were paid to her. In exchange for this receipt, the husband will agree to pay even without the kesubah, since he will keep the receipt in his possession, and if in future years the kesubah is found and the woman claims it in a beis din, he will be able to prove that he already paid.
Since the receipt testifies that the husband no longer owes the kesubah money, who stands to lose from its writing? Only the woman. The husband suffers no damage from the mere existence of the document: the worst that could happen from his perspective is that he will be forced to pay the kesubah - and to that he will not object. Therefore, the woman is permitted to have a receipt written for her and signed by witnesses, so that there will be a valid receipt and a valid proof of payment, and there is no need for the husband's consent - "af al pi she'ein ba'alah imah" - even if her husband is not with her.
"Uvilvad shehen makirin" - provided that they know them:
This is a separate requirement: the scribe and the witnesses must know both parties, the divorcing husband and wife. The reason is the concern for collusion. Suppose the scribe and witnesses know Reuven but do not know his wife's name. Reuven asks them to write a get for his wife and states that her name is Sarah, while in fact his wife's name is Rachel. His intention is to help another woman in the city whose name is Sarah and whose husband's name is Reuven, so that she can use this get and free herself from her husband. Because of this potential fraud, the scribe and witnesses are not permitted to write the document unless they know the people. The same law applies to a receipt, as fraud can occur there as well, placing a receipt in the hands of someone who is not entitled to it, with the help of a woman who cooperates with him.
"Vehaba'al notein sachar" - and the husband pays the fee:
In both cases, the get and the receipt, the husband is the one who bears the payment. For a receipt, this stems from the standard rule that the primary beneficiary is the one who pays. However, for a get, this logic does not apply at all: the Torah obligates the husband to write a bill of divorce for his wife, and if he cannot, he appoints a scribe to do so as his agent (and as we recall, in Tractate Gittin we dealt extensively with the laws of agency and appointment and the need for a precise instruction). Since the obligation to prepare the get rests upon the husband, he must also bear the payment, and there is no practical difference regarding who is the beneficiary of the get.
"Kotevin shetar lilveh af al pi she'ein malveh imo" - They write a document for a borrower even if the lender is not with him:
It is permissible to write a promissory note testifying that the borrower owes money to the lender, and the witnesses are allowed to sign it, even though the lender is not present and does not give his consent. This is because this is how things operate: the borrower asks to borrow, and the lender replies that he has the cash on hand, provided that the paperwork is brought to him - a promissory note signed by witnesses - and in exchange he will hand over the money. If the lender receives a verified document stating that so-and-so borrowed such-and-such an amount and is obligated to him, and witnesses are signed on it, he has no objection to the very creation of the document, even though he has not yet given the loan: the worst that could happen is that he will collect money that he is not owed, and there is no loss on his part. Therefore, there is no need for his consent.
However, once this document is written, it is similar to a bank note: anyone who finds it can hand it over to the person whose name is specified on it as the lender, and force the borrower to pay a second time, or to pay even though he never borrowed. Because of this, it is incumbent upon the borrower to keep the document in a safe place until handing it over to the lender, at the time when he actually receives his money.
"Ve'ein kotevin lamalveh ad sheyehei loveh imo" - And they do not write one for a lender unless the borrower is with him:
They do not write a loan document for the lender, lest he commit fraud: Reuven might claim that Shimon owes him a hundred dollars, bring witnesses to sign to that effect, while in practice Shimon never borrowed, and with this document Reuven will be able to sue him unlawfully. Therefore, the lender is not permitted to request that they sign the document unless the borrower is present at that time before the witnesses and the scribe.
"Vehaloveh notein sachar" - and the borrower pays the fee:
The borrower is the one who bears the payment for writing the document, since he is the primary beneficiary. Generally, this refers to an interest-free loan, since the Torah forbids interest, and it is therefore clear that the beneficiary is the borrower. But even if this is not the case - for example, in a transaction where the lender profits ten percent - this does not change anything: the primary beneficiary is the borrower, and he must pay.
"Kotevin shtar lamocher af al pi she'ein loke'ach imo, ve'ein kotevin laloke'ach ad sheyehei mocher imo" - They write a document for the seller even though the buyer is not with him, but they do not write one for the buyer unless the seller is with him:
In the sale of a property - real estate, for example a plot of land - this is the document that the seller hands over to the buyer. Who might object to the very existence of a document testifying that the property was sold by the seller to the buyer? The seller, since the buyer might act deceitfully, bring the document to the beis din, and thereby wrongfully seize the property. Therefore, the witnesses do not sign the document unless the original owner of the land is present and agrees to it being written and signed. On the other hand, the seller may request that the document be written even without the buyer's knowledge and consent, since in the worst-case scenario the document will testify that Reuven gave this land to Shimon - and what loss does that cause Shimon?
"Vehaloke'ach noten sachar" - And the buyer pays the fee:
The purchaser of the property is the one who bears the cost. At first glance, one might wonder: here we have a transaction concluded through negotiation; the seller receives money, the buyer receives a property, and both are satisfied - so why should one be considered to benefit more than the other? The answer is that the one who performs the kinyan (act of acquisition), who receives the items and acquires the rights or the property, is considered the primary beneficiary in the eyes of the Torah. The Gemara even cites a verse teaching that the one who performs the kinyan is the one who receives. Therefore, the one receiving the land - the purchaser, the buyer - is the one who bears the cost for writing the document.