Monday, February 08, 2010

Baba Basra 172b - Writing מהיום in a Gett

The Shulchan Aruch (E.H. 127:7) writes that although a gett must contain a z'man, if it would say in the gett "היום", it would fulfill the requirement to write z'man. The Beis Shmuel (13) quotes the Shiltei Giborim that any gett which just has the term hayom without specifying the date, would require eidi mesirah who can verify that the date that the gett is being presented to the beis din is the date on which it was written. The Beis Shmuel asks that our gemara strongly implies that the Shiltei Giborim is wrong. The gemara draws a comparison between the ambiguity of the term "hayom" and the ambiguity of writing "you" instead of specifying the lender. The gemara suggests that if hayom would work to refer to the day that the gett is being presented to the beis din, then "you" should work to identify the holder of the contract to be the lender. The Beis Shmuel asks that if the shiltei giborim is correct and we demand that the eidei mesirah know that the gett was written today, there is no comparison at all between the term hayom in a gett and the term "you" in a shtar halva'ah? Just as a gett would need eidei mesirah to identify the day, the shtar should require eidei mesirah to identify the lender?
R. Shlomo Kluger (chochmas shlomo) explains that the Shiltei Giborim learned the gemara like Tosafos. In the hava amina, the gemara thought that the ability to write hayom in the gett works even according to R. Meir that a gett must have z'man. The rationale as to why it would work is that the term hayom refers to any day that the gett will be presented, similarly the term "you" refers to anyone who is holding the contract (even if he wasn't the lender). This is based on the assumption that the borrower can be misha'beid himself to someone even without borrowing from them, therefore he is able to be misha'beid himself to anyone holding the contract. Based on the hava amina there would certainly not be a need for eidei mesirah to verify that the gett was written today. But, then the gemara pushes this off by saying that the opinion who permits "hayom" in a gett (abba shaul) rather than a specific z'man, is only R. Elazar who allows for eidei mesirah, but according to R. Meir who requires z'man, hayom wouldn't work. Why? Because the term "hayom" doesn't mean any day that the contract is shown to beis din and therefore isn't the equivalent of a z'man, but rather means a specific day. According to this new definition of "hayom", the term "you" would also not refer to any holder of the contract, rather refer specifically to the lender. Therefore, according to the maskana the shiltei giborim would make sense in requiring the eidei mesirah to verify that the contract was written today. Ultimately, the gemara says that even by a shtar chov, the fact that we aren't concerned for it falling from the lender, allows us to assume that the holder of the contract is the lender and it is equivalent to having eidei mesirah verifying that the contract was written today.

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