Bava Batra 173: Transfer of Documents, Third Party Obligations

The rabbis consider when people can use a document to claim money from a third party.  This moves them into a conversation about mesirah, the transfer of a document from one person to another.  If one acquires a document in its retrieval, then how could a third party claim ownership to the items referred to in the document?   Does one who holds a document always have to prove the way in which he acquired it?

A baraita teaches that a document can be used to claim money.  Can it also be used to collect money? to determine this, we need to know if the document was created in the presence of both the borrower and the lender.  The rabbis argue this question.  What might have happened to manipulate the scribe or one of the parties?  Many possibilities are suggested.  The rabbis even question what to do if there were two possible signatures on the document, and both were grandfathers who had the same name and were both either Kohanim or otherwise interchangeable names.   The response is that we should continue searching for independent relatives for as long as it takes. 

A new Mishna teaches that a person states that a man told his son that one of his many documents was paid, but he could not remember which.  If both are for the same person, should collect only the smaller amount?  In the end, the person who holds a document in his hand has the lower hand when claiming rights.

A second new Mishna teaches that if one lends to another and a third person is the guarantor, the lender is not permitted to collect his debt from the guarantor.  However, if third party collection is mentioned specifically in their contract, then it is permitted to collect from him.  The Mishna then questions this using the example of a poor groom who colludes with his wife to divorce so that she can collect her ketubah via her father-in-law (who is in fact the guarantor) and then the couple will remarry.  In the Gemara, the rabbis compare these situations to those of Persian law.

The Gemara discusses these points in great detail, demonstrating both the specificity of Jewish law and the differences between Jewish law and Persian law.  Much of their discussion questions whether or not the guarantor has an obligation to accept the responsibility of his charges.