Bava Batra, Chapter Ten, Mishnah Four

 

Introduction

Mishnah four continues to discuss the consent needed from the involved parties in order to write a document.

 

Mishnah Four

1)                     They may not write documents of betrothal or marriage except with the consent of both parties.

a)                                           And the bridegroom pays the (scribe’s) fee.

2)                     They may not write documents of tenancy and sharecropping except with the consent of both parties.

a)                                           And the tenant pays the (scribe’s) fee.

3)                     They may not write documents of arbitration or any document drawn up before a court except with the consent of both parties.

a)                                           And both parties pay the (scribe’s) fee.

b)                                          Rabban Shimon ben Gamaliel says:  “Two documents are written for the two parties, one copy for each.”

 

Explanation

Section one:  Since it is necessary for both the bridegroom and the groom to consent to the marriage of the other,  the scribe may not write the document without both of their consent.  Since the bridegroom is gaining a wife, he writes the document.

Section two:  Tenancy is a lease in which the tenant agrees to give the owner of the land a fixed portion of the crop.  Sharecropping is a lease in which the sharecropper agrees to give a fixed amount regardless of what the crop yields.  In both of the these types of agreements between landowners and those who wish to work the land the document must be written in front of them both.  Since the landowner is giving over a piece of his land and the tenant is promising to give the landowner something in return the scribe must ensure that the deal is agreed to by both parties.  The scribe’s fee is split.

Section three:  Arbitration documents are those that state who are the judges from whom the litigants agreed to accept binding judgement.  In the time of the Mishnah litigants jointly chose judges (see Sanhedrin 3:1), who were not necessarily fixed employees of the state.  The other types of court documents referred to in this mishnah would include such documents as those which allowed the creditor to collect the collateral from the debtor in case of default on a loan or a document that states that a creditor collected such collateral (possibly from a third party).  These documents must be written in the presence of both parties, and both parties share the scribe’s fee.

 

Questions for Further Thought:

·                      Can you extract general principles from this mishnah and the previous one for when the document must be written in a person’s presence?

 

 

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