Shabbat Parashat Yitro | 5770
Hemdat HaDaf HaYomi: Writing Down the Claims of the Litigants (168a)Rav Ofer Livnat
Shevat 16-22, Bava Batra 163-169
This week in the Daf Hayomi we are learning the Halachot of shtarot. One type of shtar that is mentioned in the Mishna (167b) is a "shtar berurin." The Mishna states that a shtar berurin can be written only with the agreement of both sides. The Gemara (168a) offers two explanations as to what the role of this shtar is. One explanation is that it is a shtar in which the claims of both litigants are recorded. According to this, the claims of the litigants cannot be written without their agreement. We will try to explain what the significance of writing down the
The Rashbam (d"h shitrei ta'anta) explains that the scribe of the judges would write down the claims of the litigants, so that they would not be able to change their claims afterward. The Nimukei Yosef (78a in the pages of the Rif) further explains that although we learnt (Baba Batra 31a) that a litigant can change his claims as long as he wasn't contradicted by witnesses, or even after he was contradicted, if he can explain that this was his original intent, after the claims are written down, they cannot be changed. According to this, it is clear why the claims can be written only after the litigants have given their consent.
We see from this discussion that the assumption is that the litigants stand before the judges and orally state their claims. The Rivash (298) states that this is indeed the Halacha: "The judges should hear the claims of the litigants from their mouths, because they might be able to learn from their words which one is telling the truth, and they should not come with their claims organized by someone else, with lies embellished by sophisticated language." In other words, when the claims are stated orally, the judges have a greater chance of finding out the truth.
Summary and Ruling:
The Shulchan Aruch (Choshen Mishpat 13, 3) rules that the judges must hear the claims of the litigants from their mouths and afterwards, with their consent, have the judge's scribe write their claims. After the claims have been written down they cannot be changed (80, 2). The Remmah (13, 3) adds that if both litigants wish to submit their claims in writing, they may.
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