בבא מציעא יד - מקורות נלווים

(ו) מָצָא שְׁטָרֵי חוֹב, אִם יֵשׁ בָּהֶן אַחֲרָיוּת נְכָסִים, לֹא יַחֲזִיר, שֶׁבֵּית דִּין נִפְרָעִין מֵהֶן, אֵין בָּהֶן אַחֲרָיוּת נְכָסִים, יַחֲזִיר, שֶׁאֵין בֵּית דִּין נִפְרָעִין מֵהֶן, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים, בֵּין כָּךְ וּבֵין כָּךְ לֹא יַחֲזִיר, מִפְּנֵי שֶׁבֵּית דִּין נִפְרָעִין מֵהֶן:

Mishnah Bava Metzia 1:6

(6) With regard to one who found promissory notes, if they include a property guarantee for the loan he may not return them to the creditor, as, if he were to return them, the court would then use them to collect repayment of the debts from land that belonged to the debtor at the time of the loan, even if that land was subsequently sold to others. If they do not include a property guarantee, he returns them to the creditor, as in this case the court will not use them to collect repayment of the debt from purchasers of the debtor’s land. This is the statement of Rabbi Meir. And the Rabbis say: In both this case and that case he should not return the promissory notes to the creditor, as, if he were to return them, the court would in any event use them to collect repayment of the loan from purchasers of the debtor’s land.

בבא מציעא י״ג א:י״א-ט״ו

וְלִשְׁמוּאֵל, דְּאָמַר לָא חָיְישִׁינַן לְפֵרָעוֹן וְלִקְנוּנְיָא...

שְׁמוּאֵל מוֹקֵי לְמַתְנִיתִין כְּשֶׁאֵין חַיָּיב מוֹדֶה...

שְׁמוּאֵל לְטַעְמֵיהּ: דְּאָמַר שְׁמוּאֵל, אוֹמֵר הָיָה רַבִּי מֵאִיר: שְׁטַר חוֹב שֶׁאֵין בּוֹ אַחְרָיוּת נְכָסִים – אֵין גּוֹבֶה לָא מִמְּשַׁעְבְּדִי וְלָא מִבְּנֵי חָרֵי.

Bava Metzia 13a:11-15

The Gemara answers that Abaye could have said to you that this is the reason for the ruling in the mishna: It is that the tanna suspects that there was repayment and collusion. Although the debtor admits his debt, he is suspected to be lying, as after he repaid the debt he might have colluded with the creditor to repossess land that he sold during the period of the loan, and the debtor and creditor would split the money between them. The Gemara asks: But according to Shmuel, who says that we do not suspect repayment and collusion, what is there to say? How can the mishna be explained? This works out well if Shmuel holds in accordance with the opinion of Rav Asi, who says that only in the case of deeds of transfer is it permitted to write a promissory note for a borrower in the absence of the lender. Accordingly, Shmuel can establish the mishna as referring to promissory notes that are not deeds of transfer. But if Shmuel holds in accordance with the opinion of Abaye, who says that a document’s witnesses, with their signatures, acquire the lien on the creditor’s behalf, what is there to say? The Gemara answers: Shmuel can establish the mishna as referring to a case when the purported liable party does not admit to the debt, and therefore the finder may not return the promissory notes to the creditor. The Gemara asks: If so, in a case when the promissory notes do not include a property guarantee, why must the finder return them to the purported creditor? Granted, the creditor cannot collect the debt from liened property that had been sold, but he can collect it from the debtor’s unsold property, even though the debtor claims to be exempt. The Gemara answers: Shmuel conforms to his standard line of reasoning, as Shmuel says that Rabbi Meir would say: In the case of a promissory note that does not include a property guarantee, the creditor collects neither from liened property that has been sold nor from unsold property. Therefore, there is no harm in the finder returning the promissory note to the creditor.

בבא מציעא י״ג ב

אָמַר רַבִּי אֶלְעָזָר: מַחְלוֹקֶת בְּשֶׁאֵין חַיָּיב מוֹדֶה. דְּרַבִּי מֵאִיר סָבַר: שְׁטָר שֶׁאֵין בּוֹ אַחְרָיוּת נְכָסִים – אֵינוֹ גּוֹבֶה לָא מִמְּשַׁעְבְּדִי וְלָא מִבְּנֵי חָרֵי. וְרַבָּנַן סָבְרִי: מִמְּשַׁעְבְּדִי הוּא דְּלָא גָּבֵי, מִבְּנֵי חָרֵי – מִגְבָּא גָּבֵי. אֲבָל כְּשֶׁחַיָּיב מוֹדֶה – דִּבְרֵי הַכֹּל יַחְזִיר, וְלָא חָיְישִׁינַן לְפֵרָעוֹן וְלִקְנוּנְיָא.

וְרַבִּי יוֹחָנָן אָמַר: מַחְלוֹקֶת כְּשֶׁחַיָּיב מוֹדֶה, דְּרַבִּי מֵאִיר סָבַר: שְׁטָר שֶׁאֵין בּוֹ אַחְרָיוּת נְכָסִים – מִמְּשַׁעְבְּדִי הוּא דְּלָא גָּבֵי, אֲבָל מִבְּנֵי חָרֵי – מִגְבָּא גָּבֵי. וְרַבָּנַן סָבְרִי: מִמְּשַׁעְבְּדֵי נָמֵי גָּבֵי. אֲבָל כְּשֶׁאֵין חַיָּיב מוֹדֶה – דִּבְרֵי הַכֹּל לֹא יַחְזִיר, דְּחָיְישִׁינַן לְפֵרָעוֹן.

תַּנְיָא כְּווֹתֵיהּ דְּרַבִּי יוֹחָנָן, וּתְיוּבְתָּא דְּרַבִּי אֶלְעָזָר בַּחֲדָא, וּתְיוּבְתָּא דִשְׁמוּאֵל בְּתַרְתֵּי... תְּיוּבְתָּא דְּרַבִּי אֶלְעָזָר בַּחֲדָא, דְּאָמַר: לְרַבִּי מֵאִיר שְׁטָר שֶׁאֵין בּוֹ אַחְרָיוּת נְכָסִים – אֵינוֹ גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים וְלֹא מִנְּכָסִים בְּנֵי חוֹרִין. וְקָאָמַר: בֵּין לְרַבִּי מֵאִיר בֵּין לְרַבָּנַן לָא חָיְישִׁינַן לִקְנוּנְיָא. וּבָרָיְיתָא קָתָנֵי: שְׁטָר שֶׁאֵין בּוֹ אַחְרָיוּת נְכָסִים – מִמְּשַׁעְבְּדִי הוּא דְּלָא גָּבֵי, הָא מִבְּנֵי חוֹרִין מִגְבָּא גָּבֵי. וְקָתָנֵי: בֵּין לְרַבִּי מֵאִיר בֵּין לְרַבָּנַן, חָיְישִׁינַן לִקְנוּנְיָא. דְּקָתָנֵי: אַף עַל פִּי שֶׁשְּׁנֵיהֶם מוֹדִים לֹא יַחְזִיר לֹא לָזֶה וְלֹא לָזֶה. אַלְמָא חָיְישִׁינַן לִקְנוּנְיָא.

וְהָא הָנֵי תַּרְתֵּי הוּא?

Bava Metzia 13b

the one who says that these matters, the loan, never happened and that the promissory note is forged. Therefore, he has no claim to the paper on which the promissory note is written. § Rabbi Elazar says: The dispute in the mishna between Rabbi Meir and the Rabbis is in a case when the purported liable party does not admit to the debt. As, Rabbi Meir holds that with a promissory note that does not include a property guarantee, one can collect a debt neither from liened property that has been sold nor from unsold property. And the Rabbis hold that it is only from liened property that one cannot collect a debt using this promissory note but that one does collect a debt from unsold property. But in a case when the liable party admits to the debt, everyone agrees that the finder must return the promissory note, and we do not suspect the creditor and the debtor of engaging in repayment and collusion [veliknuneya] to the detriment of one who purchased land from the debtor. And Rabbi Yoḥanan says: The dispute is in a case when the liable party admits to the debt. As, Rabbi Meir holds that it is only from liened property that one cannot collect a debt using a promissory note that does not include a property guarantee, but one does collect a debt from unsold property. And the Rabbis hold that one collects a debt from liened property too. But in a case when the liable party does not admit to the debt, everyone agrees that the finder may not return the promissory note, as we suspect that perhaps there was repayment. It is taught in a baraita in accordance with the opinion of Rabbi Yoḥanan, and from it there is also a conclusive refutation of one element of the opinion of Rabbi Elazar and a conclusive refutation of two elements of the opinion of Shmuel. The baraita teaches: In a case where one found promissory notes and they include a property guarantee, even if both the creditor and the debtor agree about the existence of the debt, the finder should not return it to this creditor or to that debtor. If they do not include a property guarantee, then in a case when the debtor admits to the debt, one should return the promissory note to the creditor. But if the debtor does not admit to the debt, one should not return it to this creditor or to that debtor. This is the statement of Rabbi Meir. The baraita continues: As Rabbi Meir would say: With promissory notes that include a property guarantee, one can collect the debt from liened property; but with those that do not include a property guarantee, one collects the debt only from unsold property. And the Rabbis say: With both this type and that type of promissory note, one can collect the debt from liened property. This is a conclusive refutation of one element of the opinion of Rabbi Elazar, who says that according to Rabbi Meir, with a promissory note that does not include a property guarantee one can collect a debt neither from liened property that has been sold nor from unsold property. And Rabbi Elazar also says that according to both Rabbi Meir and the Rabbis, we do not suspect that there is collusion between the debtor and the creditor. And the baraita teaches that with a promissory note that does not include a property guarantee the creditor cannot collect a debt from liened property, but he can collect it from unsold property. And the baraita also teaches that according to the opinions of both Rabbi Meir and the Rabbis, we suspect that there is collusion between the debtor and the creditor, as it is taught that if one found promissory notes that include a property guarantee, even if both the creditor and the debtor agree about the existence of the debt, the finder should not return it to this creditor or to that debtor. Apparently, we suspect collusion. This refutes Rabbi Elazar’s opinion that there is no suspicion of collusion. The Gemara asks: But aren’t these two elements of Rabbi Elazar’s statement that are refuted by the baraita? Why was it stated above that only one element is refuted?

משנה גיטין ה׳:ב׳

(ב) אֵין נִפְרָעִין מִנְּכָסִים מְשֻׁעְבָּדִים בִּמְקוֹם שֶׁיֵּשׁ נְכָסִים בְּנֵי חוֹרִין, וַאֲפִלּוּ הֵן זִבּוּרִית. אֵין נִפְרָעִין מִנִּכְסֵי יְתוֹמִים, אֶלָּא מִן הַזִּבּוּרִית:

Mishnah Gittin 5:2

(2) Payment of a debt or other obligation is not collected from liened property that has been sold to a third party when the debtor still has unsold property, even when this unsold property is inferior-quality land. The creditor cannot collect his debt from liened property that the debtor has sold to another person as long as the debtor is still in possession of other property, even if the remaining assets are inferior to those to which the creditor would otherwise have been entitled. If one who owed money died and his children inherited his property, the father’s debt can be collected from the property of the orphans only from inferior-quality land.

משנה גיטין ה׳:ג׳

(ג) אֵין מוֹצִיאִין לַאֲכִילַת פֵּרוֹת וּלְשֶׁבַח קַרְקָעוֹת וְלִמְזוֹן הָאִשָּׁה וְהַבָּנוֹת מִנְּכָסִים מְשֻׁעְבָּדִים, מִפְּנֵי תִקּוּן הָעוֹלָם. וְהַמּוֹצֵא מְצִיאָה, לֹא יִשָּׁבַע, מִפְּנֵי תִקּוּן הָעוֹלָם:

Mishnah Gittin 5:3

(3) The court does not appropriate liened property that has been sold to a third party for the consumption of produce or for the enhanced value of land. If one appropriated a field and sold it, and the buyer worked the land, enhanced it, and grew produce on it, and then the initial owner from whom the field had been stolen took back the land and the produce from the buyer, compensating him only for his expenses, then the buyer may go back to the seller, i.e., the robber, and collect his losses. He can collect the purchase price of the field even from property that the robber sold to another person. By contrast, the value of the produce and the enhancement in the value of the field, which resulted from his actions, may be collected only from the robber’s unsold property. And similarly, payment for the sustenance of a man’s wife and daughters cannot be collected from his liened property. One of the stipulations included in a marriage contract is that after the husband dies, his widow and daughters are entitled to sustenance from his estate. This sustenance cannot be collected from husband’s liened property that has been sold to another person, but only from his unsold property inherited by his heirs. All of these enactments were made for the betterment of the world. And it was further instituted that one who finds a lost item and returns it to its rightful owner is not required to take an oath that he did not keep any part of the lost item for himself. This ordinance was also instituted for the betterment of the world.

משנה תורה, הלכות גזילה ואבידה י״ח:א׳

הַמּוֹצֵא שְׁטַר חוֹב אַף עַל פִּי שֶׁלֹּא פֵּרֵשׁ בּוֹ אַחֲרָיוּת נְכָסִים וְאַף עַל פִּי שֶׁהַחַיָּב מוֹדֶה וְאַף עַל פִּי שֶׁהוּא מְקֻיָּם הֲרֵי זֶה לֹא יַחְזִיר. שֶׁמָּא פְּרָעוֹ וּקְנוּנְיָא הֵם עוֹשִׂים כְּדֵי לִטְרֹף לָקוֹחוֹת שֶׁלֹּא כַּדִּין וּלְפִיכָךְ הוֹדָה לוֹ שֶׁהֲרֵי יֵשׁ לוֹ לִטְרֹף בִּשְׁטָר שֶׁלֹּא פֵּרֵשׁ בּוֹ אַחֲרָיוּת. שֶׁהָאַחֲרָיוּת שֶׁלֹּא נִתְפָּרְשָׁה טָעוּת סוֹפֵר הוּא בֵּין בְּשִׁטְרֵי הַלְוָאָה בֵּין בְּשִׁטְרֵי מִקָּח וּמִמְכָּר. לְפִיכָךְ אִם פֵּרֵשׁ בִּשְׁטָר זֶה שֶׁהוּא שֶׁלֹּא בְּאַחֲרָיוּת אִם הָיָה הַחַיָּב מוֹדֶה יַחְזִיר וְאִם לָאו לֹא יַחְזִיר שֶׁמָּא פְּרָעוֹ:

Mishneh Torah, Robbery and Lost Property 18:1

When a person finds a promissory note, he should not return it. This applies even if the note does not explicitly say that it creates a lien on the debtor's landed property, the presumed debtor acknowledges his obligation, and the signatures of the witnesses have been validated.
The rationale is that we suspect that the note was already paid, and the creditor and the debtor are joining together to deceive the purchasers of the debtor's landed property and expropriate that property unlawfully. This is the reason why the debtor acknowledges the creditor's claim. For the creditor can expropriate property sold by the debtor with this promissory note, even though it does not explicitly say that it creates a lien on the debtor's landed property.
We follow the principle that the omission of a clause mentioning the creation of a lien on the debtor's landed property in a legal document is merely a scribal error. This applies with regard to both promissory notes and deeds of sale.
Therefore, if the promissory note states explicitly that it does not create a lien on the landed property, and the debtor acknowledges his obligation, the note may be returned. If not, the finder should not return it, lest it have been paid.