Talmud Yerushalmi
Yerushalmi Bava Metzia 1:6 ירושלמי בבא מציעא א׳:ו׳
Part of: Chapter 1
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משנה: מָצָא שְׁטָרֵי חוֹב אִם יֵשׁ בָּהֶם אַחֵרָיוּת נְכָסִים לֹא יַחֲזִיר שֶׁבֵּית דִּין נִפְרָעִין מֵהֶן. אֵין בָּהֶם אַחֵרָיוּת נְכָסִים יַחֲזִיר שֶׁאֵין בֵּית דִּין נִפְרָעִין מֵהֶן דִּבְרֵי רִבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים בֵּין כָּךְ וּבֵין כָּךְ לֹא יַחֲזִיר שֶׁבֵּית דִּין נִפְרָעִין מֵהֶן.
MISHNAH: One who found documents of indebtedness containing an alienation clause should not return them since the court will foreclose on their basis77The standard document of indebtedness was written as a mortgage covering all the real estate in the debtor’s possession at the moment of the execution of the deed. In contrast to general Egyptian and Roman practice the debtor was allowed to sell his real estate, but the alienation clause stated that the sale did not break the mortgage lien. If the debtor was unable to pay, the creditor could have regress on the buyer, who then would have to sue the debtor for his loss. The finder might not return the deed which he found since the mortgage might have been paid but the receipt somehow became separated from the document. If the deed was returned to the creditor, the latter might use it against an innocent buyer who would not know that it had been liquidated. This standard mortgage might have its root in the Ptolemaic and later Roman-Egyptian obligatio omnium bonorum, but probably it came with its Accadic name šatārum “written document” from Babylonian practice.. If they do not contain an alienation clause, he should return them since the court will not foreclose on their basis78Since the deed cannot be used against a third party, one assumes that the debtor has the means to prove that the debt was paid. In the Tosephta, 1:5, the formulation is: should return it if the debtor agrees., the words of Rebbi Meïr. But the Sages say, in no case should he return them since the court will foreclose on their basis79They rule that an alienation clause is always implied in a written bill of indebtedness; its absence only shows the incompetence of the scribe formulating the contract..
MISHNAH: One who found documents of indebtedness containing an alienation clause should not return them since the court will foreclose on their basis77The standard document of indebtedness was written as a mortgage covering all the real estate in the debtor’s possession at the moment of the execution of the deed. In contrast to general Egyptian and Roman practice the debtor was allowed to sell his real estate, but the alienation clause stated that the sale did not break the mortgage lien. If the debtor was unable to pay, the creditor could have regress on the buyer, who then would have to sue the debtor for his loss. The finder might not return the deed which he found since the mortgage might have been paid but the receipt somehow became separated from the document. If the deed was returned to the creditor, the latter might use it against an innocent buyer who would not know that it had been liquidated. This standard mortgage might have its root in the Ptolemaic and later Roman-Egyptian obligatio omnium bonorum, but probably it came with its Accadic name šatārum “written document” from Babylonian practice.. If they do not contain an alienation clause, he should return them since the court will not foreclose on their basis78Since the deed cannot be used against a third party, one assumes that the debtor has the means to prove that the debt was paid. In the Tosephta, 1:5, the formulation is: should return it if the debtor agrees., the words of Rebbi Meïr. But the Sages say, in no case should he return them since the court will foreclose on their basis79They rule that an alienation clause is always implied in a written bill of indebtedness; its absence only shows the incompetence of the scribe formulating the contract..
הלכה: מָצָא שְׁטָרֵי חוֹב כוּל׳. תַּנֵּי בְשֵׁם רִבִּי מֵאִיר. בֵּין שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין וּבֵין שְׁטָר שֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין בְּנֵי חוֹרִין. עֵל דַּעְתֵּיהּ דְּרִבִּי מֵאִיר לְאֵי זֶה דָבָר הוּא מַחֲזִיר. לָצוּר עַל פִּי צְלוֹחִיתוֹ. רַב אָמַר. יוֹרֵשׁ כִּמְשׁוּעְבָּד. כְּשֵׁם שֶׁמִּלְוָה בְעֵדִים אֵינָהּ נִיגְבִּית מִמְּשׁוּעְבָּדִין כָּךְ אֵינָהּ נִגְבִּית מִן הַיּוֹרשִׁין. שְׁמוּאֵל אָמַר. דְּאִיקנֵי אֵינָהּ גוֹבֶה מִמְּשׁוּעְבָּדִין. הָא מִבְּנֵי חֹרֵי גָבֵי. הָכָא אָתָּ מַר. גּוֹבֶה. וְהָכָא אָתָּ מַר. אֵינוֹ גוֹבֶה. לֹא דָמֵי מִי שֶׁשִּׁיעְבֵּד מִקְּצָת לְמִי שֶׁלֹּא שִׁיעְבֵּד כָּל עִיקָּר.
HALAKHAH: “One who found documents of indebtedness,” etc. It was stated in the name of Rebbi Meïr: Both based on a document containing an alienation clause or a document containing no alienation clause, he collects from unincumbered property80Property which is in the debtor’s possession without being subject to any third party lien. In this version of R. Meïr’s position, a creditor who wants to be secure has to write a contract which forbids the debtor to either sell his property or to mortgage it to another person.. Following this opinion of Rebbi Meïr, to what purpose does he return it? To cover the mouth of his pitcher81In this context, the remark is a non sequitur. It seems to refer to another tradition of R. Meïr’s, quoted in the Babli, 13a, by Samuel: A contract containing no alienation clause cannot be used to foreclose. This means that such a contract is hardly worth the paper it is written on.
E has a different text with an additional sentence:
תַּנֵּי בְשֵׁם רִבִּי מֵאִיר. בֵּין שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין וּבֵין שְׁטָר שֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים. וַחֲכָמִים אומ׳ שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים וְשֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין אֵנוֹ גוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים.
It was stated in the name of Rebbi Meïr: Both based on a document containing an alienation clause or a document containing no alienation clause, he collects from incumbered property. But the Sages say, he collects from incumbered property based on a document containing an alienation clause, but based on a document containing no alienation clause, he cannot collect from incumbered property.
S. Lieberman suggests to read תַּמָּן אוֹמְרִים “there (in Babylonia), they say” instead of “but the Sages say.” This then properly refers the entire discussion to positions of R. Meïr quoted in the Halakhah. One could also suggest to read אֲחֵרִים אוֹמְרִים “others say,” and refer to the opinion stated as R. Meïr’s in Ketubot 4:9, Note 217, which is identical with that quoted here in the name of the “Sages”.. 82The following two sentences are from Bava Qamma 10:1, Notes 12–13. Rav’s statement is a reformulation, Samuel’s a copy. Rav said, an heir is like the holder of encumbered property. Just as a loan executed before witnesses cannot be collected from encumbered property, so it cannot be collected from heirs. Samuel said, what was received cannot be foreclosed on mortgaged property, but on free property it can be foreclosed. Here you say, it can be collected, but there you say, it cannot be collected83Unencumbered property can be foreclosed on basis of an IOU missing an alienation clause. The property of the recipient of a gift cannot be foreclosed.. There is no comparison between one who agreed to a small lien and one who never agreed to a lien.
HALAKHAH: “One who found documents of indebtedness,” etc. It was stated in the name of Rebbi Meïr: Both based on a document containing an alienation clause or a document containing no alienation clause, he collects from unincumbered property80Property which is in the debtor’s possession without being subject to any third party lien. In this version of R. Meïr’s position, a creditor who wants to be secure has to write a contract which forbids the debtor to either sell his property or to mortgage it to another person.. Following this opinion of Rebbi Meïr, to what purpose does he return it? To cover the mouth of his pitcher81In this context, the remark is a non sequitur. It seems to refer to another tradition of R. Meïr’s, quoted in the Babli, 13a, by Samuel: A contract containing no alienation clause cannot be used to foreclose. This means that such a contract is hardly worth the paper it is written on.
E has a different text with an additional sentence:
תַּנֵּי בְשֵׁם רִבִּי מֵאִיר. בֵּין שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין וּבֵין שְׁטָר שֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים. וַחֲכָמִים אומ׳ שְׁטָר שֶׁיֵּשּׁ בּוֹ אַחֵרָיוּת נְכָסִין גּוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים וְשֶׁאֵין בּוֹ אַחֵרָיוּת נְכָסִין אֵנוֹ גוֹבֶה מִנְּכָסִין משׁוּעֲבָּדִים.
It was stated in the name of Rebbi Meïr: Both based on a document containing an alienation clause or a document containing no alienation clause, he collects from incumbered property. But the Sages say, he collects from incumbered property based on a document containing an alienation clause, but based on a document containing no alienation clause, he cannot collect from incumbered property.
S. Lieberman suggests to read תַּמָּן אוֹמְרִים “there (in Babylonia), they say” instead of “but the Sages say.” This then properly refers the entire discussion to positions of R. Meïr quoted in the Halakhah. One could also suggest to read אֲחֵרִים אוֹמְרִים “others say,” and refer to the opinion stated as R. Meïr’s in Ketubot 4:9, Note 217, which is identical with that quoted here in the name of the “Sages”.. 82The following two sentences are from Bava Qamma 10:1, Notes 12–13. Rav’s statement is a reformulation, Samuel’s a copy. Rav said, an heir is like the holder of encumbered property. Just as a loan executed before witnesses cannot be collected from encumbered property, so it cannot be collected from heirs. Samuel said, what was received cannot be foreclosed on mortgaged property, but on free property it can be foreclosed. Here you say, it can be collected, but there you say, it cannot be collected83Unencumbered property can be foreclosed on basis of an IOU missing an alienation clause. The property of the recipient of a gift cannot be foreclosed.. There is no comparison between one who agreed to a small lien and one who never agreed to a lien.
אָמַר רִבִּי לָעְזָר. שֶׁאֲנִי אוֹמֵר. כָּתַב לִלְווֹת וְלֹא לָוָוה. אָמַר רִבִּי לָעְזָר. אִם הָיָה הַלּוֹוֶה מוֹדֶה הֲרֵי זֶה יַחֲזִיר. אָמַר רִבִּי לָעְזָר. אִם הוּחְזַק הַשְּׁטָר בְּיַד הַמַּלְוֶה הֲרֵי זֶה יַחֲזִיר. וּתְלִיתְהוֹן מִתַּבְּרִין. וַחֲכָמִים אוֹמְרִים בֵּין כָּךְ וּבֵין כָּךְ לֹא יַחֲזִיר. רִבִּי אַבָּהוּ בְשֵׁם רִבִּי יוֹחָנָן. מִפְּנֵי קֳיְנוֹנִיָיא. רִבִּי יָסָא בְשֵׁם רִבִּי יוֹחָנָן. אִם הָיָה זְמַנּוֹ יוֹצֵא לְבוֹ בַיּוֹם יַחֲזִיר.
Rebbi Eleazar said, for I am saying that he wanted to take a loan but did not84He explains the reason of the Sages. Mishnah Bava Batra 10:5 permits to write a mortgage document for the debtor and have it signed even though the creditor not be present at that moment. As the Babli, 12b, explains, the problem with this is that the mortgage might have been executed in April but the loan was given only in October. If the debtor sold real estate in the meantime, the buyer in effect bought unencumbered property while the mortgage document falsely classified it as encumbered. Therefore, the Babli restricts the permission to mortgage deeds with which the title to the land is immediately deposited with the creditor, the Egyptian ὑπάλλαγμα (cf. R. Taubenschlag, The Law of Graeco-Roman Egypt in the Light of the Papyri, pp. 208 ff.) The Yerushalmi (loc. cit. Halakhah 10:5) gives standing in court only to unilateral promises of payment for future services.. Rebbi Eleazar said, if the debtor agreed, he should return it. Rebbi Eleazar said, if the document was generally known to be in the creditor’s hand, he should return it. But all three are broken85All three statements of R. Eleazar are rejected in practice., “the Sages say, in no case should he return them.” Rebbi Abbahu in the name of Rebbi Joḥanan: Because of conspiracy86Greek κοινωνία, cf. Yebamot3:9, Note 133. Lender and borrower might conspire to defraud the innocent buyer; see Note 84.. Rebbi Yasa in the name of Rebbi Joḥanan: If its date was that very day, he should return it87,The document was dated the day it was found; the witnesses are still available who can testify to its genuineness.88E here has an addition which is irrelevant:
וַאֲפִילוּ אֵין זְמַנוֹ יוֹצֵא לבוֹא בַּיּוֹם יַחֲזִיר. מָהוּ פְליג, ומד רַבִּי אַבָּהוּא בְשֵׁם רַבִּי יוֹחָנָן. מִפְּנֵי קָיְנוֹנִייָה. ומד רַבִּי יוֹחָנָן. אִם הָיָה זְמַנוֹ יוֹצֵא לְבוֹא בַּיוֹם יַחֲזִיר.
But could he not return it if the date was not of the same day? Do they disagree? But Rebbi Abbahu said* in the name of Rebbi Johanan: Because of conspiracy. Rebbi Johanan said*: If its date was that very day, he should return it.
* Reading ומר for ומד..
Rebbi Eleazar said, for I am saying that he wanted to take a loan but did not84He explains the reason of the Sages. Mishnah Bava Batra 10:5 permits to write a mortgage document for the debtor and have it signed even though the creditor not be present at that moment. As the Babli, 12b, explains, the problem with this is that the mortgage might have been executed in April but the loan was given only in October. If the debtor sold real estate in the meantime, the buyer in effect bought unencumbered property while the mortgage document falsely classified it as encumbered. Therefore, the Babli restricts the permission to mortgage deeds with which the title to the land is immediately deposited with the creditor, the Egyptian ὑπάλλαγμα (cf. R. Taubenschlag, The Law of Graeco-Roman Egypt in the Light of the Papyri, pp. 208 ff.) The Yerushalmi (loc. cit. Halakhah 10:5) gives standing in court only to unilateral promises of payment for future services.. Rebbi Eleazar said, if the debtor agreed, he should return it. Rebbi Eleazar said, if the document was generally known to be in the creditor’s hand, he should return it. But all three are broken85All three statements of R. Eleazar are rejected in practice., “the Sages say, in no case should he return them.” Rebbi Abbahu in the name of Rebbi Joḥanan: Because of conspiracy86Greek κοινωνία, cf. Yebamot3:9, Note 133. Lender and borrower might conspire to defraud the innocent buyer; see Note 84.. Rebbi Yasa in the name of Rebbi Joḥanan: If its date was that very day, he should return it87,The document was dated the day it was found; the witnesses are still available who can testify to its genuineness.88E here has an addition which is irrelevant:
וַאֲפִילוּ אֵין זְמַנוֹ יוֹצֵא לבוֹא בַּיּוֹם יַחֲזִיר. מָהוּ פְליג, ומד רַבִּי אַבָּהוּא בְשֵׁם רַבִּי יוֹחָנָן. מִפְּנֵי קָיְנוֹנִייָה. ומד רַבִּי יוֹחָנָן. אִם הָיָה זְמַנוֹ יוֹצֵא לְבוֹא בַּיוֹם יַחֲזִיר.
But could he not return it if the date was not of the same day? Do they disagree? But Rebbi Abbahu said* in the name of Rebbi Johanan: Because of conspiracy. Rebbi Johanan said*: If its date was that very day, he should return it.
* Reading ומר for ומד..
[וַאֲפִילוּ אֵין זְמַנּוֹ יוֹצֵא לבוֹא בַיּוֹם יַחֲזִיר. מָהוּ פְליג. ומד רִבִּי אַבָּהוּא בְשֵׁם רִבִּי יוֹחָנָן. מִפְּנֵי קֳנוֹנִיָיה. ומד רִבִּי יוֹחָנָן. אִם הָיָה זְמַנּוֹ יוֹצֵא לְבוֹא בַיּוֹם יַחֲזִיר.]
But could he not return it if the date was not of the same day? Do they disagree? But Rebbi Abbahu said* in the name of Rebbi Joḥanan: Because of conspiracy. Rebbi Joḥanan said*: If its date was that very day, he should return it.
But could he not return it if the date was not of the same day? Do they disagree? But Rebbi Abbahu said* in the name of Rebbi Joḥanan: Because of conspiracy. Rebbi Joḥanan said*: If its date was that very day, he should return it.