Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

“One who wants to become wise should engage in the study of monetary law, as there is no greater discipline in the Torah, and it is like a flowing spring.” So says Rabbi Yishmael on the next to last page of Tractate Bava Batra, which Daf Yomi readers have been studying for the past six months. I found this a surprising statement: Why should the laws governing financial and real-estate transactions be more conducive to wisdom than the laws of marriage or the laws governing Shabbat? The latter areas of halakha are certainly more religious in character, founded on biblical verses and dealing with concepts such as purity and holiness.

Monetary law, on the other hand, is largely secular, devised by the rabbis themselves based on principles of fairness and convenience. Perhaps it is precisely because they leave God out of the equation that such laws are especially good at teaching wisdom. They require a kind of worldly knowledge, a tough-minded awareness of how deals are made, that the rabbis could not find exclusively in the beit midrash. Indeed, as we have seen throughout the Talmud, many leading sages were themselves merchants and businessmen, which meant that they were often party to the kind of contracts discussed in Bava Batra.

For instance, in Bava Batra 171b, we read about a dispute that arose when Rabbi Abba owed money to Rav Yitzhak bar Yosef. When Rav Yitzhak came to demand payment, Rabbi Abba asked for the return of the promissory note he had. As we saw in this week’s reading, promissory notes are an important subject in Talmudic law because they are powerful legal instruments. A creditor can use a promissory note not just to foreclose on the property of the debtor, but even to claim property that the debtor sold to other parties. In other words, a promissory note creates a lien on the borrower’s property, effective from the date of the note.

It was a particular concern of the rabbis that a note might be used fraudulently to demand payment of the same debt twice. To prevent this, the law instructs that when a note is paid off, it should be torn up before a court. According to Rav Yehuda, tears should be made at “the place of the witnesses’ signatures and the place of the date and the place of the essential part of the document.” Abaye opines that the whole document should be torn into four parts, “lengthwise and widthwise.” This procedure would allow judges to distinguish between a note that was torn accidentally but is still legally binding and one that was torn by a court in order to void it.

Rabbi Abba, then, was exercising ordinary caution when he asked to get his promissory note back before he paid off his debt. But Rav Yitzhak bar Yosef, it turned out, could not produce the note, because he had lost it. Instead, he offered to write a receipt for the payment of the debt. Rabbi Abba could use the receipt to thwart any future attempt to collect the debt a second time, either by Rav Yitzhak himself or, presumably, by any third party to whom the debt might be sold. But there is a dispute among the sages as to whether it is permitted to write such a receipt; apparently, both Rav and Shmuel, who usually disagree, said that it was not.

The reason is that the existence of two documents—a note held by the creditor and a receipt held by the debtor—puts them both in a difficult position. Remember that in Talmudic times, it was the physical possession of a legal document that proved a financial claim. In this situation, if Rabbi Abba lost his receipt, and Rav Yitzhak found his note, the latter could try to collect the debt a second time. “If the receipt of the debtor is lost, should the creditor eat and rejoice?” demands Abaye. Of course, a symmetrical logic applies to the creditor: Just because Rav Yitzhak lost his note, “how should this debtor eat and rejoice?” The question about whether to write a receipt turns into a question about who should have a higher burden of proof, the debtor or the creditor.

This stand-off leads the Gemara to enunciate a crucial principle: When it comes to a dispute between creditor and debtor, the advantage should always go to the former. Rava supports this idea with a citation from Proverbs: “The borrower is a servant to the lender.” There are two ways of thinking about this dictum. One might criticize it for placing the interests of the haves above the interests of the have-nots—a feature Talmudic law shares with just about every legal system, since it is the haves who generally write the laws.

On the other hand, one might say that because it is the creditor who takes the risk, it is only fair that he should have the protection of the laws. If it were easy to default on debts, no one would ever make a loan, which would be to the disadvantage of society as a whole. The Gemara invokes this explanation a few pages later, when explaining why the holder of a promissory note is able to collect even from property sold by the debtor to a third party. This rule is instituted “so as not to lock the door in the face of borrowers”: The protection of the creditor is ultimately to the advantage of the borrower as well.

In this case, it turns out, the halakha is that “one writes a receipt” in a case like Rabbi Abba’s. A similar question arises in the mishna in Bava Batra 170b, which considers a case where a debtor pays off part of his debt. Does he receive a receipt for partial payment, or should the creditor tear up the original promissory note and write a new one, reflecting the new balance? Here, again, the ruling is to the advantage of the creditor: He does not tear up the original note, only writes a receipt, which it is up to the debtor to preserve. Rabbi Yehuda objects that “this debtor must now guard his receipt against being destroyed by mice,” because if he loses the receipt he might have to pay the full debt. But again, Rabbi Yosei says that “this is fitting for him” because “the strength of the creditor should not be weakened.” Neither a borrower nor a lender be is good advice, but if you have to be one of these, the Talmud makes clear it’s better to be the lender.

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Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.





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