Torah Community Connections

Week 110 - Friday - 4 January 2002

BAVA BATRA: CHAPTER 10: MISHNAH 7

Two brothers, the one poor and the other rich, and their father left them a bathhouse and an olive-press: if he made them for rental - the rent is in the middle; if he made them for themselves - the rich one can say to the poor one: "Buy yourself slaves and let them bathe in the bathhouse," "buy yourself olives and prepare them in the olive-press." Two who were in the city, one named Joseph b. Simon and the other named Joseph b. Simon - they cannot take out a bill of debt against one another, nor can another take out a bill of debt on them. If among the bills of one is found a paid bill of Joseph b. Simon, the bills of both are paid. What should they do? They write three generations. And if they have three generations, they write an identifying mark: and if they have an identifying mark, let them write Cohen. One who says to his son: A bill among my bills is paid, and I don't know which - the bills of all are paid. If two are found for one - the larger is paid and the smaller is not paid. One who lends his neighbor with a guarantor, should not collect from the guarantor. And if he said: On condition that I collect from whomever I wish - he may collect from the guarantor. Rabban Shimon ben Gamliel says, If the borrower has assets, this way or that way he may not collect from the guarantor. So, too, did Rabban Shimon ben Gamliel say, One who is a guarantor for a woman's ketubah, and her husband divorced her - he must vow not to let her derive any benefit from him, lest they make a conspiracy against this one's assets, and he will take back his wife.

Kehati

Two brothers, the one poor and the other rich, and their father left them - as an inheritance, a bathhouse and an olive-press - where olives are crushed for oil, if he made them for rental - if the father set up the bathhouse and olive press to be rented out, the rent is in the middle - the poor one can force the rich one to rent them out, and they will share the rental received; if he made them for themselves - some read, for himself, namely that the father made these for his family's use, the rich one can say to the poor one: "Buy yourself slaves and let them bathe in the bathhouse," "buy yourself olives and prepare them in the olive-press" - in other words, you cannot rent these out but may use them as our father did. It transpires that the poor man loses in his poverty, for he cannot force his brother to rent out these facilities to others. And even though the halakhah is that in those items which are not subject to division each of the partners can say to the other: "Sell me your portion or I will sell you mine," in this case it is different, for the poor man does not have sufficient assets to buy out his brother.

Two who were in one city, one named Joseph b. Simon and the other named Joseph b. Simon - Both had the same name, they cannot take out a bill of debt against one another - for each could claim, This note was originally in my possession for I lent to you on the strength of it and after you repaid the loan I returned the note to you; nor can another take out a bill of debt on them - for each can claim that the other Joseph b. Simon had borrowed the money, and not he. If among the bills of one is found a paid bill of Joseph b. Simon - If a person borrowed money from two people named Joseph b. Simon and gave each a bond and among his papers was found a receipt to the effect that the loan to Joseph b. Simon had been repaid, the bills of both are paid - and neither can collect from him.

What should they do? - So that these situations should not occur? They write three generations - As, for example, Joseph b. Simon b. Jacob; And if they have three generations - If the names of their grandfathers are also identical, they write an identifying mark - such as Joseph b. Simon the tall or the swarthy, and if they have an identifying mark - if both have the same identifying mark, let them write Cohen - If one of them is a priest they specify it in writing his name. The Gemara quotes a baraita that if both are priests, they write their names back to the fourth generation, such as Joseph b. Simon b. Jacob b. Isaac. One who says to his son - on his deathbed, A bill among my bills is paid - among the debt notes in my possession, one was paid by the debtor, and I don't know which - The debtor trusted me and I did not return him his note, and I do not wish to be punished (in the World to Come, should the bill be collected twice - Rashbam), the bills of all are paid - for each borrower can claim that it was his note that had been paid.

If two are found for one - If there were two debt bills given by one borrower, indicating that he had borrowed twice, the larger is paid - the note for the larger amount is considered paid, and the smaller is not paid - for the father had said only one note had been paid, not two. One who lends his neighbor with a guarantor - who guaranteed repayment of the loan, should not collect from the guarantor - the lender may not go to the guarantor to collect the debt unless first he has sued the borrower for the debt, and only the court has ordered him to pay. If then the borrower cannot repay the money, the lender may sue the guarantor and collect from him (Gemara).

And if he said - If the lender had said, On condition that I collect from whomever I wish - if at the time of the loan, the lender had specified that he was to be allowed to collect the debt from either the borrower or the guarantor, he may collect from the guarantor - then he may exact payment from the guarantor and need not first claim from the borrower in court. The Gemara explains that the mishnah is written defectively and is to be understood as follows: When is this true? When the borrower has no assets, but if the borrower has assets, he is not to collect from the guarantor. With a kablan (one who says, "Give him the loan and I will repay you") he may collect from the kablan, even though the borrower has assets.

Rabban Shimon b. Gamliel says, If the borrower has assets, this way or that way - whether he be a standard guarantor or a kablan-type guarantor he may not collect from the guarantor - but from the borrower's assets. The halakhah does not follow R. Shimon ben Gamliel (Gemara). So, too, did Rabban Shimon ben Gamliel say, One who is a guarantor for a woman's ketubah - if a person guaranteed to pay the husband's indebtedness under his wife's ketubah, if the husband would not have sufficient funds, and her husband divorced her - and did not have enough money to pay the ketubah, so that the guarantor is called upon to pay it, he must vow not to let her derive any benefit from him - the guarantor does not pay the wife her ketubah until her former husband vows that she will not derive any further benefit from him, so that in the future he will not be able to remarry her, for we are concerned lest they make a conspiracy against this one's assets - lest the husband and wife fraudulently arrange a divorce so as to force the guarantor to pay the ketubah, and he will take back his wife - and both live off the ketubah money she receives from the guarantor.

Thus Rabban Shimon ben Gamliel is concerned lest the guarantor sustain any loss, just as he ruled in favor of the guarantor, that he should not lose by having a lender collect from him when the borrower has assets (Nimukei Yosef). The Gemara states that in general the assets of a guarantor to a ketubah are not mortgaged, for he only tried to do a mitzvah, but he had no intention of paying the guaranty. But the assets of a father who is his son's guarantor are mortgaged. If he was a kablan guarantor, for example, if he said to her, "Marry this man, and I will pay your ketubah," there is a dispute in the Gemara as to whether or not he becomes obliged to pay (Rambam rules that he does become obliged). It follows that Rabban Shimon ben Gamliel is referring to a case where the man's father was the guarantor for the ketubah, or the guarantor was a kablan.

BAVA BATRA: CHAPTER 10: MISHNAH 8

One who lends to his neighbor on a note, collects from mortgaged assets. Through witnesses - he collects from free assets. If he produced his handwriting, that he owes him - he collects from free assets. A guarantor that appears after the signature of notes - he collects from free assets. A case came before R. Yishmael and he said, He collects from free assets. Ben Nanas said to him, He does not collect either from mortgaged property or from free property. He said to him, Why? He said to him, If one throttled another in the market, and his neighbor found him and said to him, "Leave him alone" - he is exempt, for he did not lend to him relying upon him. Which guarantor is obligated? "Lend him and I will give you" - he is obligated, for he lent him relying upon him. R. Yishmael said, One who wishes to become wise, let him deal with civil law, for there is no branch of the Torah greater than it, for it is like a gushing spring. And one who wishes to occupy himself with civil law, let him serve Shimon b. Nanas.

Kehati

One who lends to his neighbor with a note - Even though the borrower did not write that he is mortgaging his real property to the lender, collects - the lender can collect his debt, from mortgaged assets - even including real estate that the borrower sold after the bill of debt was written, for we rule that mortgaging ("ahrayut") is an error of the scribe, i.e., the scribe erred in not writing in the bill of debt that the borrower's real estate is mortgaged. The note is therefore treated as if that stipulation had been made (see Bava Metzia 1:6). The term for "mortgaged" - (Heb. meshubadim, lit., enslaved) is explained by some to mean "sold," and it is called meshubadim because it now belongs to the buyers (Rashbam; Bah). Others explain that the term meshubadim refers to the fact that the land now belongs to the creditor even though it is in the possession of the buyers. (Bet Yosef; Sema);

Through witnesses - One who lent money to another before witnesses, but without a note, he collects from free assets - from assets in the possession of the borrower, but not from mortgaged assets. The Gemara explains (according to Ulla, and the halakhah follows him), that mortgage of the borrower's assets to the lender is by Torah law, as it states (Deut. 24:11): "And the man to whom you did lend shall bring forth the pledge to you," and this applies to both movable and real property. It follows from this that according to Torah law any loan, either oral or on a written note, is secured by the borrower's mortgaged property. Why then did the Sages rule that in the case of an oral loan one cannot collect from mortgaged property? The reason for this is that there is no publicity to an oral loan, and the Sages were concerned lest buyers lose money through no fault of their own. For they would not know about the loan and so avoid purchase of the land. However, a loan secured by note with the signatures of witnesses has publicity and buyers are obliged to make enquiries and to leave the goods in the possession of the seller, so that the creditor can collect his debt from them. If one nevertheless bought land which is mortgaged to the lender, he brought the loss on himself.

If he produced his handwriting - If the lender produced a note in the handwriting of the borrower, that he owes him - money, but the note contains no signatures by witnesses, he - the lender, collects from free assets - For any note which does not have the signatures of witnesses does not have the force of a note, and is considered to be an oral loan. Some deduce from the mishnah text - "If he produced his handwriting" - that even if the borrower wrote in his own handwriting, "I, so-and-so, owe so-and-so the following amount," even if he did not sign his name below, the lender may collect from the borrower's free assets (see Tur 69). A guarantor that appears after the signature of notes - After the witnesses signed their names, the guarantor wrote: "I, so-and-so, am a guarantor for the borrower," he - the guarantor - collects from free assets - since the witnesses did not sign the guarantee it is equivalent to an oral loan.

A case came before R. Yishmael - where a guarantor wrote his guarantee after the witnesses had signed, and he - R. Yishmael said, he - the lender - collects from free assets - of the guarantor, as we learned above. Ben Nanas said to him - To R. Yishmael: He does not collect either from mortgaged property or from free property - For according to Ben Nanas he is not considered a guarantor, as explained below. He - R. Yishmael - said to him - to Ben Nanas, Why? - Should he not at least collect from free assets? He - Ben Nanas - said to him - to R. Yishmael, If one throttled another in the market - if a creditor seizes a debtor and violently demands payment of his loan, and his neighbor found him and said to him - to the one demanding payment, "Leave him alone" - and I will pay you, he is exempt - from paying the debt, for he did not lend to him relying upon him - it was not because he trusted this third man and relied upon him that he made the loan. That is to say he only accepted the guarantee after the loan had already been arranged - the third party is not a guarantor at all. Which guarantor is obligated - to pay? "Lend him and I will give you" - If, before a loan is made, one said to the lender, "Lend him money and I will repay you," such a one is a guarantor and he is obligated - to pay the loan, for he lent him relying upon him - because the lender trusted him and relied on his responsibility, he lent the money to the borrower. In reality, R. Yishmael disagrees with Ben Nanas even in the case of a person being throttled, for according to him a person who became a guarantor after a loan was taken out, is regarded as a guarantor and his assets are mortgaged. The halakhah follows Rabbi Yishmael, except that the assets of a guarantor after the loan are not mortgaged unless they are formally acquired, whereas the assets of a guarantor at the time of a loan are mortgaged even without any formal act of acquisition (kinyan) taking place (Gemara).

R. Yishmael said, One who wishes to become wise - To acquire wisdom and knowledge and to sharpen his intelligence, let him deal with civil law, for there is no branch of the Torah greater than it - for it is like a gushing spring - of logical deduction and balanced argument. And one who wishes to occupy himself with civil law, let him serve Shimon b. Nanas - Let him study with Ben Nanas. The Gemara states that even though R. Yishmael praised Ben Nanas, the halakhah still follows R. Yishmael (as quoted above).

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