Bava Basra, Chapter 10, Mishnah 4. Following the previous mishnah, this mishnah also addresses the question of who must be present and give their consent for the writing of a document, and who is responsible for bearing the cost. This time, we are dealing with cases where the presence and consent of both parties are required simultaneously.
Documents of Betrothal and Marriage:
"Ein kosvin shitrei eirusin venisuin ela mida'as sheneihem" - One may not write documents of betrothal or marriage except with the consent of both parties. What are these documents?
Shitrei eirusin - This refers to what we commonly call 'tena'im'. Before the marriage (and the eirusin, which is the kiddushin, the first part of the marriage process), both parties - the father of the bride and the groom - reach financial agreements regarding who will pay for what and who will provide what. These conditions grant rights and create obligations for both parties, and therefore they cannot be written except in the presence of both.
Shitrei nisuin - This refers to the kesubah, which is a sort of marriage contract in which the husband takes upon himself obligations toward the wife. She also has obligations in the marriage, but the main point of the document is that it takes care of her and guarantees her protection and sustenance in the event of death, divorce, and the like.
Since both parties commit themselves through these documents, the consent of both is required - they must both agree to have the witnesses sign what the scribe writes.
"Vehachasan nosein sachar" - In both cases, the payment falls upon the groom, the man. Why? Because he is the one making the acquisition, as the mishnah says, "The woman is acquired," and her rights are acquired by him. As explained in the previous mishnah, the Torah's approach is that the one making the acquisition is the primary beneficiary, and therefore he must pay for the document.
Documents of Sharecropping and Contracting:
"Ein kosvin shitrei arisus vekablanus ela mida'as sheneihem" - These documents regulate a person's status as a tenant on a property:
Arisus - The tenant is a sharecropper, who agrees to give the landowner a portion of the crop: a third, a quarter, or a half.
Kablanus - This generally refers to a leaseholder, who commits to a fixed payment, such as ten kor of wheat per year, or any other amount as rent. There is no practical difference regarding the form of payment.
In both cases before us, there is a transaction between the landowner and the tenant, who will work the land and pay compensation in exchange for the right to reside on it. Since the document grants rights and obligations to both parties, to the landowner and the tenant - "ela mida'as sheneihem", both of them must consent to its writing.
"Vehamekabeil nosein sachar" - The payment falls upon the tenant, the one residing on the land. It should be emphasized that the term 'mekabeil' also includes the sharecropper: anyone who receives the land to reside upon it is the primary beneficiary, since he receives something - land to reside upon - and therefore he must pay for the document.
Documents of Arbitration and All Court Proceedings:
"Ein kosvin shitrei birurin v'chol maaseh beis din ella midaas sheneihem" - Documents of arbitration (shitrei birurin) and any court enactment are not written except with the consent of both. This matter is more complex than it appears, as a 'shtar birurin' can refer to two different things that have no connection to each other at all:
Choosing a beis din: This is the basic and typical case. Two litigants who disagree about who owes money to whom, and cannot agree on which beis din to approach, take the approach of zabla - "Zeh borer lo echad v'zeh borer lo echad" (this one chooses one for himself and this one chooses one for himself): Reuven chooses one judge, Shimon chooses his own judge, and the two judges choose a third judge. Together, the three constitute the beis din that will hear the case. The shtar birurin is the commitment of each party regarding the judge they chose, and the acceptance of the authority of the beis din composed of the three judges. Since both are bound by the contract, the document is written with the consent of both, and as will be explained below, the payment is also incumbent upon both, as they benefit from it equally.
Clarifying the claims: When the beis din convenes, the two litigants can be asked to put their claims and demands in writing and submit them to the beis din in writing. The Mishnah does not reflect this, but halachically, litigants cannot be coerced to agree to this under normal circumstances: once a person has written his claim, he is bound by it and may not change it, which is not the case with an oral claim. Nevertheless, the Mishnah teaches that once the claims of both parties have been put in writing, both derive benefit from it, both must be present, and both pay equally.
"V'chol maaseh beis din" - And any court enactment. These are other documents, such as when the beis din determines that Reuven did not fulfill his obligation, and from now on Shimon is permitted to confiscate his assets and the like. These documents are called 'hachlatah' and 'adrachta', and they are of the type where the beis din enforces something. Here too, since the matter is binding, both parties must be aware of it, and therefore the consent of both is required.
"Usheneihem nosnim sechar" - And both of them pay the fee. Both of them pay equally. This applies primarily to the first part of the shtar birurin, where both agree on the beis din, as well as in the case where both put their claims in writing: both profit and therefore both pay. However, of course, a document that obligates one person and entitles his fellow to collect from him - the person from whom they are collecting does not need to pay for it.
The Dispute Between the Sages and Rabban Shimon ben Gamliel:
The final part of the Mishnah deals - although this is not explicit in its wording, and therefore it is difficult to follow - with the second definition of a shtar birurin, in which the litigants put their claims in writing. In the opinion of the Sages, the cheapest way is for one scribe to sit once and write both claims on a single sheet.
However, this method is liable to cause damage to each of the litigants: each party had an action plan for the hearing in beis din, and once he has put it in writing, his opponent can ascertain his claims and prepare in advance. Therefore, a person might request not to write on a joint document, but on two separate sheets, in order to keep his claims a secret. But this involves a greater expense, as two documents are required.
"Rabban Shimon ben Gamliel omer: Sheneihem kosvin shenayim" - Rabban Shimon ben Gamliel says, both of them write two. In his opinion, there is nothing wrong with this: each one writes his set of claims in his own shtar birurin, and even though it costs a little more, it does not matter - "Zeh le'atzmo v'zeh le'atzmo" - This one for himself and this one for himself. Each writes for himself, does not need the consent of his fellow, and pays for his document in full.
And the Sages disagree: this is not fair, as it causes the defendant to pay more. He can say: I do not want to pay more, I am willing to participate in a single document, and I cannot be coerced to absorb additional expenses and hire a separate drafter to draw up a separate document; I wish to do this the cheaper way.
The halachah is not in accordance with Rabban Shimon ben Gamliel: if they come to write, they must write in a single document in order to save on expenses. However, in actual halachic practice, under normal circumstances one cannot force the opposing litigant to put his claims in writing from the outset, as this places him in an unfair position of inferiority. But if he agreed to write, they can be forced to write together and divide the expenses equally, with minimum expense for both parties.
In summary: In this Mishnah we learned about documents written with the consent of both parties: documents of betrothal (tena'im) and marriage (kesubah), where the groom pays their fee because he is the one making the acquisition; documents of tenancy and sharecropping, where the receiver who sits on the land pays their fee because he is the primary beneficiary; and shitrei birurin and any court enactment, where both of them pay their fee equally. We also noted the two definitions of a shtar birurin, the dispute between the Sages and Rabban Shimon ben Gamliel regarding writing the claims in one document or in two documents, and the final halachic ruling.