Bava Basra - Daf 154
- Machklokes if the giver must prove he was a שכיב מרע with עדים or with קיום השטר
In the Mishnah on Daf 153a, where a gift was given and a dispute arose if the giver was a שכיב מרע at the time, Rebbe Meir says the giver must prove he was a שכיב מרע, and the Chochomim say the recipients must prove he was a בריא to take the property. Amoraim dispute what “proof” the Mishnah means. Rav Huna says: ראיה בעדים – proof with witnesses that he was a שכיב מרע at the time. He explains that these Tannaim parallel the machlokes quoted on the previous Daf, whether we assume he was healthy then if he is healthy now, or we follow the property’s חזקה. Other Amoraim say: ראיה בקיום השטר – the Chochomim mean proof through certifying the document. They both hold that if he is healthy now, we assume he was then. They argue if מודה בשטר שכתבו צריך לקיימו – one who admits that he wrote a שטר but claims it cannot be used, [the שטר’s holder] must certify it to use it. Since the שטר could not be used without the giver’s admission, the Chochomim hold he can claim he was a שכיב מרע (similarly, a borrower can claim the שטר was paid) until the holder independently verifies the שטר.
- Someone sold property and died, and his relatives claim he was a קטן at the time
Someone once sold his late father’s property and died, but his relatives claimed he died as a קטן, and the sale was invalid. They asked Rebbe Akiva: מהו לבודקו – what about examining his body to determine if he was a גדול? He responded: אי אתם רשאים לנוולו – you are not permitted to disgrace [the body] by examining it; ועוד סימנין עשויין להשתנות לאחר מיתה – furthermore, סימנים of maturity tend to change after death, so the examination would prove nothing. Rebbe Yochanan argues that if the requisite proof in the Mishnah is merely to certify the שטר, why did the purchasers request to examine the body? Let them simply certify their שטר!? Reish Lakish answers that the purchasers had already taken possession of the property, and the relatives sought to retake it by examining the body and proving he was a קטן. This seems more reasonable, because if the purchasers had requested the examination, why would they agree not to disgrace the body? Since they paid for the property, they would have insisted on the examination!? The Gemara answers that Rebbe Akiva had additionally told them the examination was worthless.
- If the former owner challenges a שטר saying it is a שטר פסים or שטר אמנה
The Mishnah of Bar Kappara states that if a field’s previous owner challenged someone occupying it, and the occupant presented a שטר that he acquired it, then if the previous owner admits the שטר was not forged, but says it is a שטר פסים (a fake document to falsely make the holder appear wealthy), or a שטר אמנה – a document of trust, where the buyer was trusted to pay for the land (but did not, voiding the sale), then if עדים do not corroborate his claim, we follow the שטר. Reish Lakish asked Rebbe Yochanan if this follows only Rebbe Meir’s opinion, that one who admits he wrote a שטר but claims it is invalid, the שטר is followed without certification. Rebbe Yochanan responded that everyone holds such a שטר is used without certification. Although the Rabbonon do hold that a שטר must be certified where עדים admitted signing it but claim they were ineligible witnesses, Rebbe Yochanan differentiates: אי עדים אלימי ומרעי שטרא – if עדים are stronger, and can weaken the שטר with their claim, איהו כל כמיניה – does [the seller] have such power?! Although the שטר was confirmed through the seller’s admission, he still cannot undermine it. Rebbe Zeira rejects this entire version of Rebbe Yochanan’s conversation and presents another.
