Bava Batra, Chapter Ten, Mishnah Three
Mishnah three discusses the consent needed from the involved parties in order to write a document.
1) They may write out a bill of divorce for a man even if his wife is not with him, or a receipt (stating that the husband has paid the ketubah debt) for the wife even if her husband is not with her, provided that he (the scribe) knows them.
a) And the husband pays the (scribes) fee.
2) They may write out a document for the debtor even though the creditor is not with him, but they may not write out a document for the creditor unless the debtor is with him.
a) And the debtor pays the (scribes) fee.
3) They may write out a deed of sale for the seller although the buyer is not with him, but they may not write it out for the buyer unless the seller is with him.
a) And the buyer pays the (scribes) fee.
Section one: A scribe may write a get (a divorce document) for a husband or a receipt for the woman saying that she had received her ketubah payment even if the spouse is not there. The reason that he can write the get without the womans presence is that according to Jewish law a woman can be divorced against her will. Since she need not agree to the writing of the document, she need not be present when it is written. The reason that the scribe can write the receipt without the husbands presence is that it is to the husbands advantage that a receipt be written. Without the receipt the woman might claim that her husband had not paid her the ketubah money. In other words, in both of these cases there is no potential that the husband will fraud the wife by writing a get nor the woman fraud the husband by writing a document. The only requirement is that the scribe know the people for whom he is writing the document. Since the husband is the one divorcing his wife and in the case of the receipt the husband is the one benefiting, he pays the scribes fee.
Section two: A scribe may write a loan document while not in the presence of the creditor but it must be done in the presence of the debtor. Since the debtor is the one who through the document becomes liable to pay back the creditor, the scribe must know that the debtor agreed to the writing of the document. The creation of the document is beneficial to the creditor, for through it he will receive the money in return. Therefore it need not be written in his presence. The debtor pays the scribes fee.
Section three: A scribe may write a sale document while not in the presence of the buyer but it must be done in the presence of the seller. Since the document will cause the seller to lose his property, the scribe must know that it is being written with his consent. The buyer, who gains from the sale, need not be present. The buyer pays the scribes fee.
Questions for Further Thought:
· Sections two and three: Why do you think the debtor and not the creditor pays the scribes fee? Remember that according to Jewish law it is forbidden to lend money to other Jews with interest. Why does the buyer pay the fee?
Can you extract general principles from these two mishnayoth for when the document must be written in a persons presence?