Bava Metzia, Chapter 1, Mishnah 8 - the final Mishnah of the chapter. This Mishnah includes several different topics. The first of these continues the subject we dealt with in the previous two Mishnayos: what is the halachah for one who finds documents, and must he return them? In the previous Mishnah we learned that in the examples brought there, there is no obligation to return them; whereas in our Mishnah, examples are brought where one must indeed return them.
Documents Issued by a Beis Din:
The first group in the Mishnah deals with documents administered by a beis din, and the fundamental difference is that the beis din would prepare these documents after the fact and not beforehand. In the previous Mishnah we dealt with a get, and a person might write a get and never deliver it. By contrast, in the cases before us, the beis din only delivers the document after the matter has become an accomplished fact and the action has already been taken. Therefore, we can assume that we have before us a relevant document that has already been executed, and it must therefore be delivered to the person for whom it is intended.
"Matza igros shum" - An 'iggeres' is a letter, a document intended to some extent for public knowledge, unlike a private contract strictly between two parties. 'Shum' means appraisal: it refers to a lender who was unable to collect his debt, and the beis din gives him a property from the borrower's assets when the latter does not pay in cash. The beis din appraises the value of the borrower's assets, which are liened to the loan, and determines: You lent him one hundred, it is therefore proper that you receive this parcel of land in exchange. The document testifying to the appraisal is given to the lender and serves as his deed of ownership, proof that he is the legal owner of that land.
"Igros mazon" - Two explanations are offered to clarify this:
The Bartenura explains that this refers to a man who marries a woman who already has a daughter, and he thereby takes on a stepdaughter. Strictly speaking, he has no special obligations toward her, but if he officially agreed to support her and give her a certain amount for a period of time, this is written in beis din as a document of proof, and this is called an 'iggeres mazon'. It is called an 'iggeres' because it is a public document, and they would even be happy to publicize it, as it reveals the magnanimity and generosity of the stepfather.
Another explanation, which many learn: This refers to an authorization given to a widow, and her documents prove that she is permitted to collect from the estate ahead of her late husband's heirs, since her sustenance takes precedence. She had no money to support herself otherwise, and the document teaches that she is permitted to support herself from what she sells from the estate.
"Shtarei chalitzah" - Documents confirming that chalitzah was performed. A woman who was widowed and her husband died without children requires yibbum: she must either marry her husband's brother, which is yibbum, or perform chalitzah, and today the practice is only to perform chalitzah. The surviving brother removes his shoe and she spits on the ground, and after the chalitzah she is free to marry anyone. Therefore, she needs a document, similar to a get, teaching that she underwent the chalitzah process and is available to marry anyone other than her brother-in-law. The beis din only gives her this document after she has actually performed the chalitzah, so she is certainly a chalutzah and is entitled to the document. One who finds a document of chalitzah - he should return it to her, so that she can marry someone else.
"Umi'unin" - This refers to an orphaned girl whose father is no longer alive, and she is a minor who does not know whom to marry. In the times of Chazal, such a situation could have been to her detriment, so the Sages empowered her mother or her older brothers to marry her off on her behalf and for her benefit. If it turns out that she does not desire the man to whom they married her, she is permitted to reject him before the age of bas mitzvah, and this rejection is 'mi'un'. Once she performs mi'un, it emerges that she was never married to him at all, and therefore a girl who performs mi'un can even marry a kohen, since she is not a divorcee. However, since people know that she was married to him, or at least seemingly married, she requires a document proving that this is not the case, and that is the document of mi'un. One who finds a document of mi'un - he should return it to her, as the beis din would not write it unless she had already performed the mi'un in practice.
"Shtarei birurin" - When coming to beis din, certain types of cases are judged before three dayanim. How do the plaintiff and defendant agree on who the dayanim will be? Each one selects one dayan, and the two dayanim choose a third dayan, and thus a beis din of three is established. To prevent the process from getting stuck, the two litigants agree: I accept my dayan, you accept your dayan, and they will choose a third, and I cannot retract, rather I will continue with the case and accept upon myself whatever the beis din rules. This agreement is anchored in writing in the shtar birurin, which states whom each party chose. A document that was lost and found - must be returned, as it is binding, and each party wants to ensure that the opposing side indeed fulfills his commitment to be judged before a specific dayan.
"V'chol ma'aseh beis din - harei zeh yachazir":
Simply put: any other type of beis din document, or a document reflecting what the beis din did - must be returned to the person for whom it was written. And what does this rule come to add? The Gemara suggests two documents:
Shtar chalatasa - Similar in essence to an iggeres shum, where an appraisal is made allowing the lender to receive assets from the borrower. The difference is that an iggeres shum is done with the agreement and in the presence of the borrower, who knows what is being done; whereas when the borrower is absent, recalcitrant or non-participating, the beis din acts unilaterally and gives the lender authorization to confiscate a property and sell it himself, such as by putting it up for public auction, in order to collect the debt.
Shtar adrachta - A sort of power of attorney and legal authorization, whose contents are: the borrower who owes you money has no assets as far as we know, but if you ever discover an asset belonging to him, you are authorized to claim it in order to collect your debt.
These two documents are delivered to the lender. This concludes the first part of the Mishnah.
Identifying Marks on Documents:
The second part of the Mishnah introduces a new topic: a situation where an item is found that is not usually returned, such as a single document, but the loser has a way to identify that it is his - and then it is proper that he receive it back. Here we begin to transition into the next chapter, to the mitzvah of returning lost property and providing simanim, meaning identifying marks that allow one to get the lost item back.
The question is what is the halachah regarding a promissory note that is not to be returned, since it may have belonged to the borrower and it may have belonged to the lender. If the lender can prove that the document was in his possession, he receives it back. How? "Matza bachafisah uvadluskama" - The document was found inside a leather bag. Rashi explains:
"Chafisah" - A leather bag for keeping wine.
"Dluskama" - A leather bag in which things are kept for old age, so they will not be lost.
The point is that a person keeps his document in this leather container. Therefore, if the loser says: I lost my document and it was in my leather pouch - it must be returned to him, as this is proof and identification. Similarly, if an announcement was published that a document was found, and the loser provided an identifying sign and said it was in his leather case - we return it to him. Tosafos point out that this is a normal thing, and people keep items in leather cases, such as document portfolios and small suitcases; nevertheless, the identifying sign is the exact same concept.
And so too, "tachrich shel shtaros o agudah shel shtaros" - several documents that were bound together, and this is also an identifying sign:
"Tachrich" - document A is rolled up, document B is rolled on top of it, and document C is rolled on top of that. To bind means to bunch together, tie, and wrap.
"Agudah" - a bundle, a collection of documents: three pages placed one on top of the other and rolled together into a single cylinder. Presumably, the law would be the same if they were stapled together or attached with a paperclip.
Therefore the Mishnah says "harei zeh yachazir" - if the loser can say: This is my document, and I identify all three of them, and they were bound together in this manner - this is a sign, and it must be returned to him.
"Vechamah agudah shel shtaros? Sheloshah keshurim zeh bazeh" - how many documents must be in a bundle? Three. Because if a person hung up a notice: I found documents, give an identifying sign for them, and the identification provided is "I lost two documents" - this is not enough, as this is simply the plural form. But three is more than that, and therefore when there are three or more and the loser knows to say how many there were, this is a good sign that verifies the lost item is his.
The view of Rabban Shimon ben Gamliel:
"Echad haloveh misheloshah" - three documents were found without an identifying sign, but all three belong to one borrower, meaning three different lenders and one borrower. It stands to reason that the lost item belongs to the borrower, for if these are loans from three different people, why would the documents be lying together unless they fell from the borrower's pocket? And therefore "yachazir liloveh" - he should return them to the borrower.
"Sheloshah lovin me'echad" - three documents of three different borrowers from one lender, "yachazir limlaveh" - he should return them to the lender, based on the exact same logic: why would the lender have three documents of three different borrowers in his possession unless he gave three loans?
The Gemara qualifies this, stating that we are dealing with documents that are validated and certified by a Beis Din. For if not, perhaps it was the scribe who dropped them from his hand before the loan was executed: the borrower is doing a fundraising round of investors for his new business, approaches three investors, they agree and instruct the scribe to write the documents, and the scribe prepares three documents - and perhaps no money was ever given, or there is no way to confirm yet what happened. Therefore, it is required that the documents be signed and validated in a Beis Din.
"Matza shtar bein shtarotav ve'eino yodea mah tivo" - he found a document among his documents and does not know its nature:
Here we have a new matter: a person found a document among his belongings, in a drawer among his documents, and he does not know the nature of this document. How so? Reuven finds in his folders a document stating that Shimon owes Levi money, and he tries to remember who gave it to him: did Shimon deposit it with him for safekeeping, or perhaps Levi? And he does not remember. Since he does not remember, the Mishnah says "yehei munach ad sheiyavo Eliyahu" - he does not give it to anyone, but rather leaves it with himself until Eliyahu the Prophet comes and decides to whom it should be given. It is worth noting that if at a later stage he remembers how the document reached his hands, he is believed and we follow his words; and if he says: Now I remember, the money was not paid or it was indeed paid - we rely on this memory.
Simponos:
The last part of the Mishnah is an independent matter, and does not refer to the previous sentence, but rather returns to the person's own records. A person is going through his documents and sees in his drawer of paid documents one document that was not torn like the other documents, which were torn once they were paid. Seemingly it still needs to be collected, but attached to it lies a document testifying that it was already paid. This is unusual and confusing: if it was paid, why was it not torn? Many things could have happened.
The Mishnah says: "Im yesh imahen simponos - yaaseh mah shebesimponos" - if there are receipts with them, he should act according to what is in the receipts. Simponos are documents that contradict the facts, meaning we are faced with two arrows pointing in opposite directions regarding how to treat this contract. The halachah is that we follow the second document that contradicts the first, since we assume it was written later to cancel what was done. In other words, the very discovery of a payment receipt next to an untorn promissory note compels us to assume the debt was paid, and you simply forgot to tear up the contract - and this is why the receipt remained in your possession, as you presumably forgot to hand it over to the borrower.
The Gemara emphasizes that this assumption applies when the contract is found among your other paid contracts. However, if you found it among the unpaid contracts, meaning in the pile of contracts you still need to collect on, and a receipt is attached to one of them - we do not assume the debt was paid. This is because you may have written the receipt and are waiting to receive the money to hand it over, but you never actually received the payment and therefore never gave the receipt. It turns out that we only follow the simpon when the circumstances surrounding the contradiction indicate that the simpon reflects what actually happened.
In summary: In this Mishnah we learned three topics. First - documents issued by a beis din (documents of evaluation and alimony, documents of chalitzah and refusals, documents of arbitration and any court act, including a document of seizure and a document of authorization to trace assets), which must be returned because they are written only after the action was actually performed. Next - the laws of identifying marks for documents: a chafisah and a dluskma, a rolled set and a bundle of three documents, and the opinion of Rabban Shimon ben Gamliel regarding three documents from a single borrower or a single lender. Finally - one who finds a document among his own documents and does not know its status, it must remain until Eliyahu comes, as well as the law of simponos, where we follow them when circumstances indicate that they reflect reality.
In the next chapter we will discuss the mitzvah of returning lost property and the laws of providing identifying marks in greater detail.