Throughout the Talmud, we’ve encountered the principle of minhag hamakom, that rules vary by local custom. Today, we see that it applies to how witnesses properly sign a document:
With regard to an ordinary document whose witnesses wrote their signatures on the back of it, and a tied document whose witnesses wrote their signatures inside of it, both of these are not valid.
Rabbi Hanina ben Gamliel says: A tied document whose witnesses wrote their signatures inside of it is valid, because one can transform it into an ordinary document by untying it.
Rabban Shimon ben Gamliel says: Everything is in accordance with minhag hamakom (regional custom).
We’ve already seen that there are critical differences between tied and untied documents: Tied documents are signed on the outside, while untied documents bear the signatures very close to the written text. And, as we’ll learn later on today’s daf, the former require three witnesses, while the latter require just two. But it seems that there was also variation in regional customs surrounding tied documents. The Gemara wonders:
And does the first tanna not accept that one should follow the regional custom?
The anonymous statement — ascribed to the first, unnamed tanna — invalidates untied documents where the witnesses signed on the back or tied documents in which they wrote on the inside. This conflicts with Rabban Gamliel’s statement of the general principle that regional customs supersede general practices in certain matters, and the Gemara is puzzled. Cue Rav Ashi to try to untangle this:
In a place where the custom is to write an ordinary document, and one said to a scribe: “Make an ordinary document for me,” and the scribe went and made a tied document for him, it is assumed that he was particular about wanting an ordinary document. Similarly, in a place where the custom is to write a tied document, and one said to a scribe: “Make a tied document for me,” and the scribe went and made an ordinary document for him, it is assumed that he was particular about wanting a tied document.
From this, we garner a basic rule: If there’s a local custom — whether tied or untied — and the requester specifies that they want the local custom followed, there’s an assumption that they’re being intentionally specific. In this way, Rav Ashi harmonizes the first tanna and Rabban Shimon’s views and homes in on the actual dispute:
Where the tannaim of the mishnah disagree is in a place where the custom is to write either an ordinary document or a tied document, and one said to a scribe: “Make an ordinary document for me,” and the scribe went and made a tied document for him. In such a case, one sage (the first tanna) holds that the one requesting the document was particular about wanting an ordinary document, and since the scribe wrote a tied document, it is considered to have been written without his consent. And one sage (Rabban Shimon ben Gamliel) holds that the one requesting the document was merely indicating his position to the scribe.
We find ourselves in a community where both untied and tied documents are customary. The requester has asked for an untied document, but the scribe wrote a tied document. Our anonymous tanna believes this document has been written without his consent and is therefore invalid, while Rabban Shimon finds the requester’s direction to be merely a preference.
Rabban Shimon’s position carries the day. Subtly, this adds even more weight to local custom, because in a place where local custom permits a different format, a scribe is allowed to interpret specific instructions as only a preference — which is kind of remarkable for the rabbis, who so often place great emphasis on precise wording.
Read all of Bava Batra 165 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 7, 2024. If you are interested in receiving the newsletter, sign up here.
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