Today’s daf discusses this mishnah:
One who found promissory notes, if they include a property guarantee he may not return them (to the creditor), as the court would then use them to collect repayment. If they do not include a property guarantee, he returns them, as in this case the court will not use them to collect repayment — this is the statement of Rabbi Meir.
And the rabbis say: In both this case and that case he should not return them, as the court would in any event use them to collect repayment.
If you find an IOU, according to the rabbis, you should not return it to the creditor. Why not? Wouldn’t this allow the creditor to rightfully collect a debt that is owed?
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There are many reasons. For one, you don’t know who lost the note — maybe it was the debtor and not the creditor. Maybe, for example, the debt has already been collected and so the note had already passed back into the debtor’s possession. Or perhaps the loan has not yet been transferred because the note got lost on the way to the creditor in the first place.
But let’s say the loan was tendered and has not yet been paid back. Might there still be a reason not to return the note to the creditor? Yes: Perhaps the debtor mortgaged his land for the debt, and then subsequently sold it to a third party. Now, if the creditor goes to court to collect the debt from that land, the creditor will end up collecting from an innocent third party who bought land they didn’t know had been mortgaged. (The difference between Rabbi Meir and the rabbis in our mishnah seems to hinge on precisely this question: Can a court collect property against a debt when the property has not been explicitly mortgaged?)
The Gemara considers an even more troubling possibility:
One suspects repayment and collusion.
Here’s a scheme Reuven and Shimon might cook up: Suppose Reuven borrows a large sum of money from Shimon and uses his property to guarantee the loan. Then Reuven sells the property to Levi. To make good on the debt, the court will collect the property from Levi and give it to Shimon. Later, Reuven repays Shimon some of the money he borrowed. Shimon and Reuven come out ahead, with Levi, the innocent party, paying the price. That’s collusion, and we don’t want to end up facilitating it by returning the promissory note.
Not all the sages on today’s daf agree that a lost promissory note is really a “lost” promissory note that is part of an illegal collusion. Shmuel, for instance, thinks we should not suspect collusion. Further, he agrees with Rabbi Meir that a court cannot collect the debt from property unless that is explicitly written into the loan. So at least in the case of a promissory note that does not include a property guarantee, there is no harm in returning it because there is no concern the debt will be collected from an innocent third party who bought the debtor’s property.
But if that’s the case, then the promissory note — which now can’t be used to collect the debt — is basically worthless. So why bother returning it?
Rabbi Natan bar Oshaya says: The creditor can use it to cover the opening of his flask.
In that case, says Rabbi Natan bar Oshaya, the promissory note is still worth the paper it is written on. Because the rabbis used heavy papyrus and not thin pulped wood for paper, it can still be used to stop up the neck of a flask. This means there is still value in the note and it ought to be returned for that reason alone.
This is just a taste of the conversation on this page, which continues onto the next daf. The upcoming mishnahs deal with similar scenarios in which legal documents that have apparently gone astray are found: gittin (divorce documents), deeds of manumission, wills, documents guaranteeing gifts, alimony, halitzah (refusal of a levirate marriage), and refusal of a marriage arranged for a minor girl. In such cases, the questions are similar: To whom is this document returned and why?
Read all of Bava Metzia 13 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 2th, 2024. If you are interested in receiving the newsletter, sign up here.
