Bava Batra 173 - December 15, 14 Kislev

This week’s learning is sponsored by Robert and Paula Cohen in loving memory of my grandfather, Joseph Cohen, Yosef ben Moshe HaCohen, z”l. “My grandfather was hard working, loved to sing, especially as a chazan, and brought up his family to be strongly committed to Judaism.” 

If two people have the same name, can they collect from other people if we cannot be sure that the document in their hand is really their own? It can be inferred from our Mishna that they can collect, but a braita rules that they cannot. The root of the debate is either regarding whether documents can be acquired by passing them from one to the other (otiyot niknot b'mesira) or perhaps both hold that they can, but the root of the debate is whether one needs to prove the document was passed to them from the other. Rava and Abaye debated the latter issue and a braita is quoted from which each one tries to prove his position.

Another braita rules against both the Mishna and the previously quoted braita, holding that two people with the same name can pull out a loan document one on the other. The root of the debate is whether or not a borrower can have a scribe draft a promissory note not in the presence of the creditor. If it can be done, one can pretend to be the borrower, draft the note, and then use it to collect from the other.

If a person tells one's children on their deathbed that one of their promissory notes in their possession is already collected, the children cannot claim any of the loans, as the burden of proof is on the one who collects. If there are two promissory notes for the same person, they can collect the one with the smaller amount.

When one has a loan with a guarantor, can the creditor collect from the guarantor? If so, under what circumstances?

What is the source from the Tanach for the responsibility of a guarantor? At first, they try to learn it from Yehuda and Reuven, when they each promised to take responsibility for bringing Binyamin to Egypt, but that source is rejected and instead, verses from Proverbs 20:16 and Proverbs 6:1-3 are used as the source.

Ameimar views a guarantor's commitment as asmachta (a commitment that the guarantor never really meant to keep) and would then be a subject of debate between Rabbi Yosi and Rabbi Yehuda if it is a valid commitment. Rav Ashi rejects this explanation and explains why it is not viewed as asmachta.