The mishnah on 18a stated that we don’t return bills of divorce, bills of manumission of slaves, wills, deeds of a gift, or receipts that are found, out of concern that perhaps they were never delivered. If a husband wrote a get but changed his mind and never delivered it, presumably the last thing he wants is for someone to stumble upon it and present it to his wife. But we’ve seen that sometimes they can be returned. For instance, consider this beraita:
If one found a woman’s bill of divorce in the marketplace, in a case when the husband admits that he wrote and gave it, the finder must return it to the wife. If the husband does not admit to this, the finder may neither return it to this one (the husband) nor to that one (the wife).
There is a similar ruling with regard to bills of manumission: they are returned to the (former) slave if the owner admits to having written them.
At first glance, this seems intuitive: If the husband agrees that he wrote and delivered the get, why shouldn’t we return it to his ex-wife? Likewise the slaveholder? However, the Gemara brings up a concern we’ve encountered before: unlawful collection from purchasers of a debtor’s property.
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But let us suspect that perhaps he wrote the bill of divorce intending to give it in Nisan, but did not give it to her until Tishrei, and the husband went and sold the produce of his wife’s property in the interim since the divorce had not yet taken effect.
The wife might then produce the bill of divorce, which he wrote in Nisan, and come to repossess the produce from the purchasers unlawfully.
In returning either a get or bill of manumission, we should be concerned for the possibility that the date written was not the date of delivery. If the woman wasn’t divorced, or the slave wasn’t freed, until Tishrei — seven months after Nisan — then the produce sold by the husband or owner between Nisan and Tishrei was his to sell. And if the ex-wife or freed slave were to use the found document to collect the value from those purchasers, it would be unlawful.
For some rabbis, this doesn’t pose a dilemma. Rabbi Shimon says that from the moment a man writes a bill of divorce, he loses the rights to his wife’s property’s produce, even if he hasn’t yet delivered it. (There’s something very intuitive about his stance as well: Why should a husband continue to benefit from his wife’s property once he’s already decided to divorce her?) Likewise, according to Abaye, a deed of manumission takes effect from the moment it’s been signed.
But for those who disagree and hold that a husband has a right to his wife’s produce until the get is delivered, or that a slave isn’t freed until he receives the bill of manumission, how do we address the concern about unlawful repossession of sold property? The answer, the Gemara says, is simple: Purchasers can demand proof of when the document was received.
But if this is true, asks the Gemara, then why doesn’t this apply beyond a get or document of manumission? Why can’t we also return loan documents to a creditor when the debtor admits they haven’t paid?
As the Gemara explains, the difference between divorce and manumission documents, on the one hand, and loan documents, on the other, lies in the purchasers’ expectations. In the case of a get, the purchasers assume it was returned so the wife isn’t rendered an agunah, a chained woman. Since the court has a motive to return the document even without ascertaining the time of its delivery, when the woman comes to collect, purchasers will think to demand proof.
Presumably the same logic is at play in the case of a slave, though the Gemara doesn’t explicitly address it: The court has motive to return a document of manumission to a freed slave so they don’t remain in an undefined condition of servitude, and therefore purchasers will remember to demand proof of when the document was received. But in the case of a loan document, purchasers will assume the only reason the court would return it is because the court ascertained that its date is accurate, and they won’t bother to demand proof from the creditor, allowing for the possibility of unlawful repossession.
In these discussions about finding and potentially returning lost documents, the Gemara balances competing interests. How do we execute justice and prevent exploitation and collusion? Whose exploitation are we more concerned with? And what are the consequences of actively enabling harm versus passively allowing it?
Read all of Bava Metzia 19 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 18th, 2024. If you are interested in receiving the newsletter, sign up here.
