Bava Basra - Daf 168
- A צורבא מרבנן is not expected to recognize women
Rav Yirmiyah was signed as a witness on a receipt, and the woman named in the receipt claimed it was not written for her. Rav Yirmiyah told her that he had initially also told the other witnesses that it was not she, but they replied that she had aged. Abaye ruled that although a witness cannot retract from earlier testimony, Rav Yirmiyah can retract and testify that this is the woman in the receipt, because צורבא מרבנן לאו אורחיה למידק – a Rabbinical student is not accustomed to carefully examine women, so he is believed that he now recognizes her after looking more carefully. In another incident where a woman claimed the receipt was not written for her, Rav Yirmiyah bar Abba insisted that it was she. Abaye said that although a צורבא מרבנן is not accustomed to carefully examine women, כיון דדק דק – once he has checked carefully, he has checked, and we rely on his testimony. Abaye said that aצורבא מרבנן who goes to marry, נידבר עם הארץ בהדיה – should take an am haaretz with him, דלמא מחלפו לה מיניה – because perhaps they will switch her with another woman and take her from him (and he will not realize).
- Machlokes of אסמכתא re: a partially paid שטר
The next Mishnah states: מי שפרע מקצת חובו – One who repaid part of his debt, והשליש את שטרו – and deposited his שטר with a third party, and told him, “If I do not pay the remaining balance by such-and-such a date, give the שטר back to the lender,” which would allow him to collect the entire amount again. If the date arrived and he did not pay, Rebbe Yose says: יתן – he should give the שטר back, and Rebbe Yehudah says he should not. The Gemara explains that Rebbe Yose holds: אסמכתא קניא – “reliance” (i.e., a commitment made without expecting to have to keep it) is binding, and Rebbe Yehudah holds an אסמכתא is not binding. Rav Nachman reported that Rav ruled אסמכתא is binding, and when such cases came before Rebbe Ami, he would say, “Since Rebbe Yochanan told us numerous times that the halachah follows Rebbe Yose, what can I do?” Still, the Gemara rules that the halachah does not follow Rebbe Yose, and אסמכתא is not binding.
- Replacing an erased שטר
The next Mishnah states that if someone’s שטר was inadvertently erased, he should bring עדים who can testify about the contents of the שטר, and come before Beis Din, ועושין לו קיום – and they produce a document of validation for him, and write, “The שטר of Ploni ben Ploni was erased, which was written on such-and-such a date, and Ploni and Ploni were its עדים.” A Baraisa records the certification text that the Beis Din writes up for the new שטר, and adds that if the certification states: הוזקקנו לעדותן של עדים – we investigated the testimony of the witnesses, ונמצאת עדותן מכוונת – and their testimony was found accurate, then he can collect with the שטר without proving the debt itself, since the previous Beis Din already verified it. If it does not contain this clause, then Beis Din only confirmed the text of the original שטר, and he must still prove its veracity. The Baraisa says that an intentionally torn שטר is invalid, but an inadvertently ripped שטר is valid. An intentional tear, performed by Beis Din after a שטר is repaid, can be identified by the עדים, date, and primary elements of the שטר being torn, or by being torn in an x-shape.
