When a legal document is drawn up to attest to a loan or a business transaction, which of the two parties pays the cost of the scribe?
Logically it would make sense to say that the individual who will benefit from having a clear legal record of the transaction should pay the costs. Thus, the lender, who will need this documentation in order to collect the debt, would appear to be the one who should pay.
The Mishna on today’s daf rules otherwise.
According to the Mishna, it is the borrower who will pay the scribe’s wages, similarly it is the purchaser who will pay for the receipt to be written. In other cases where a contract or legal document needs to be written, we find:
- That the husband will pay the costs of a shetar kiddushin – a marriage document
- That the sharecropper will pay the costs of the tenant agreement
- That both parties will share the expense when they have a court case.
The Ramah explains that the underlying principle in these cases is that we do not look at the person who will benefit from having a legal record of the transaction or the agreement, rather we judge based on which party is benefitting most from the transaction itself. For example, since it is the borrower who is deriving benefit by receiving the loan, it will be his responsibility to pay for the shetar that documents the transaction. Similarly, in the case of buying and selling – which likely refers to a non-commercial sale – the one who truly derives benefit is the purchaser, since people are usually reluctant to sell their possessions.
According to the Gemara, this is true even if the purchase was a low quality field, since by its nature, real estate is a more substantial thing than money which is spent and is gone.