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Today's Daf Yomi

July 14, 2017 | 讻壮 讘转诪讜讝 转砖注状讝

  • This month's learning is sponsored by Ron and Shira Krebs to commemorate the 73rd yahrzeit of Shira's grandfather (Yitzchak Leib Ben David Ber HaCohen v'Malka), the 1st yahrzeit of Shira's father (Gershon Pinya Ben Yitzchak Leib HaCohen v'Menucha Sara), and the bar mitzvah of their son Eytan who will be making a siyum on Mishna Shas this month.

  • This month's learning is sponsored for the refuah shleima of Naama bat Yael Esther.

Bava Batra 173

Laws regarding a guarantor of a loan are discussed. 聽When can one collect from a guarantor?


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讜讗诇讗 讛讗 讚转谞讬讗 讻砖诐 砖讗讬谉 诪讜爪讬讗讬谉 砖讟专 讞讜讘 讝讛 注诇 讝讛 讻讱 讗讬谉 诪讜爪讬讗讬谉 注诇 讗讞专讬诐 讘诪讗讬 拽诪讬驻诇讙讬

The Gemara asks: And what of that which is taught in another baraita: Just as the two men named Yosef ben Shimon cannot produce a promissory note, this one against that one, so they cannot produce promissory notes against others, as those others can claim: I did not borrow from you but from the other Yosef ben Shimon, and somehow the note he was holding is in your possession? This baraita contradicts the mishna, from which it was inferred that one of the two men named Yosef ben Shimon can produce promissory notes to collect the debt from others. With regard to what principle do the mishna and baraita disagree?

讘讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 拽诪讬驻诇讙讬

They disagree with regard to whether letters, i.e., the content of a promissory note, are acquired by merely transferring the document to a new owner. In other words, they disagree about whether or not a creditor can transfer his right to collect a debt to another by merely transferring the document to him.

转谞讗 讚讬讚谉 住讘专 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 讜转谞讗 讘专讗 住讘专 讗讬谉 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛

The tanna of our mishna maintains that letters are acquired by transferring the document. There is no concern that the promissory note was inadvertently transferred from one Yosef ben Shimon to the other by being lost and then found, as explained earlier. Nevertheless, there is still the possibility that one Yosef ben Shimon deliberately transferred the promissory note to the other, transferring the right of collection to him. According to this tanna, the second Yosef ben Shimon is fully entitled to collect the debt by producing the promissory note. And the tanna of the baraita holds that letters are not acquired by transferring the document, so that even if one Yosef ben Shimon transferred his promissory note to the other, the new holder of the document is not entitled to collect the debt.

讜讗讬 讘注讬转 讗讬诪讗 讚讻讜诇讬 注诇诪讗 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 讜讛讻讗 讘爪专讬讱 诇讛讘讬讗 专讗讬讛 拽讗 诪讬驻诇讙讬 转谞讗 讚讬讚谉 住讘专 讗讬谉 爪专讬讱 诇讛讘讬讗 专讗讬讛 讜转谞讗 讘专讗 住讘专 爪专讬讱 诇讛讘讬讗 专讗讬讛

And if you wish, say that everyone, i.e., both the tanna of the mishna and the tanna of the baraita, holds that letters are acquired by transferring the document, and here they disagree with regard to whether or not the new holder of the promissory note is required to bring proof that the original creditor transferred it to him for collection, as opposed to his having received it for safekeeping or having found it by chance. The tanna of our mishna holds that the present holder of the document is not required to bring proof that the debt was transferred to him and therefore he can collect the debt through the promissory note in his possession. And the tanna of the baraita holds that he is required to bring such proof, and in its absence he cannot collect the debt with the document he holds.

讚讗讬转诪专 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 讗讘讬讬 讗诪专 爪专讬讱 诇讛讘讬讗 专讗讬讛 讜专讘讗 讗诪专 讗讬谞讜 爪专讬讱 诇讛讘讬讗 专讗讬讛

This is as it was stated: Letters are acquired by transferring the document. Abaye says: The new holder of the document is required to bring proof that he has in fact acquired the right to collect the debt. And Rava says: He is not required to bring such proof; it is assumed that if he is holding the document it was transferred to him knowingly by the original creditor.

讗诪专 讗讘讬讬 诪谞讗 讗诪讬谞讗 诇讛 讚转谞讬讗 讗讞讚 诪谉 讛讗讞讬谉 砖讛砖讟专 讞讜讘 讬讜爪讗 诪转讞转 讬讚讜 注诇讬讜 诇讛讘讬讗 专讗讬讛 诪讗讬 诇讗讜 讛讜讗 讛讚讬谉 诇讗讞专讬谞讬

Abaye said: From where do I say that he is required to bring proof? This is as it is taught in a baraita: In the case of one of several brothers, heirs of an estate, who has a promissory note in his possession listing a debt owed to the deceased father, and he seeks to collect the debt for himself, it is upon him to bring proof that the document was transferred to him legally by his father in his lifetime, or that it was bequeathed to him specifically and he did not appropriate it from the other brothers. Abaye concludes from this: What, is the same not true for all others in a similar situation? In other words, whenever someone holds a promissory note that did not initially belong to him he is required to prove that he acquired it legally.

讜专讘讗 讗诪专 砖讗谞讬 讗讞讬谉 讚砖诪讟讜 诪讛讚讚讬

And Rava said in response: Proof is not generally required in such a case. But the case of brothers who are heirs is different, as it is common for brothers who are co-heirs to seize property belonging to the estate from one another.

讗讬讻讗 讚讗诪专讬 讗诪专 专讘讗 诪谞讗 讗诪讬谞讗 诇讛 讚转谞讬讗 讗讞讚 诪谉 讛讗讞讬谉 砖讛砖讟专 讞讜讘 讬讜爪讗 诪转讞转 讬讚讜 注诇讬讜 诇讛讘讬讗 专讗讬讛 讗讞讬谉 讛讜讗 讚砖诪讟讜 诪讛讚讚讬 讗讘诇 讗讞专讬谞讬 诇讗

There are those who say there is a different version of this exchange between Abaye and Rava. According to this version, Rava said: From where do I say that no proof is required? As it is taught in a baraita: In the case of one of several brothers, heirs of an estate, who has a promissory note in his possession listing a debt owed to the deceased father, and he seeks to collect the debt for himself, it is upon him to bring proof that the document was transferred to him legally by his father in his lifetime, or that it was bequeathed to him specifically and that he did not appropriate it from the other brothers. The implication is that it is only brothers who must bring such proof, as it is common for brothers who are co-heirs to seize property belonging to the estate from one another. But others in a similar situation do not have to bring proof that they acquired the promissory note legally.

讜讗讘讬讬 讗讞讬谉 讗讬爪讟专讬讻讗 诇讬讛 住诇拽讗 讚注转讱 讗诪讬谞讗 讻讬讜谉 讚砖诪讟讜 诪讛讚讚讬 讗讬诪讗 诪讬讝讚讛专 讝讛讬专讬 讜诇讗 爪专讬讻讬 诇讛讘讬讗 专讗讬讛 拽诪砖诪注 诇谉

And how would Abaye counter this proof? He would say: There is no difference between brothers and anyone else; they all have to bring proof. The baraita specifies brothers because it was necessary for it to mention that case, as it might enter your mind to say that since it is common for brothers who are co-heirs to seize property belonging to the estate from one another, one might say that they are careful to prevent such attempts. And therefore, when brothers produce a promissory note, they are not required to bring proof that they obtained it legally, as it is assumed that the other brothers would not have allowed the note to escape their possession otherwise. To counter this, the baraita teaches us that brothers, too, must bring proof when they produce promissory notes.

讜讗诇讗 讛讗 讚转谞讬讗 讻砖诐 砖诪讜爪讬讗讬谉 讛谉 砖讟专 讞讜讘 注诇 讗讞专讬诐 讻讱 诪讜爪讬讗讬谉 讝讛 注诇 讝讛 讘诪讗讬 拽诪讬驻诇讙讬

搂 The Gemara returns to discuss the case of two men with the same name. But what about that which is taught in another baraita: Just as the two men named Yosef ben Shimon can produce a promissory note against others, so can they produce promissory notes against one another. This represents a third opinion, standing in opposition to both the mishna and the previous baraita. The Gemara asks: With regard to what do the mishna and first baraita on the one hand, and this baraita on the other, disagree?

讘讻讜转讘讬谉 砖讟专 诇诇讜讛 讜讗祝 注诇 驻讬 砖讗讬谉 诪诇讜讛 注诪讜 拽诪讬驻诇讙讬

The Gemara answers: They disagree about whether or not a scribe may write a promissory note for a debtor even if the creditor is not with him.

转谞讗 讚讬讚谉 住讘专 讻讜转讘讬谉 砖讟专 诇诇讜讛 讜讗祝 注诇 驻讬 砖讗讬谉 诪诇讜讛 注诪讜 讝讬诪谞讬谉 讚讗讝讬诇 诇讙讘讬 住驻专讗 讜住讛讚讬 讜讗诪专 诇讛讜 讻转讘讜 诇讬 砖讟专讗 讚讘注讬谞谉 诇诪讬讝祝 诪讬讜住祝 讘谉 砖诪注讜谉 讞讘专讬 讜讘转专 讚讻转讘讬 讜讞转诪讬 诇讬讛 谞拽讬讟讗 诇讬讛 讜讗诪专 诇讬讛 讛讘 诇讬 诪讗讛 讚讬讝驻转 诪讬谞讗讬

The tanna of our mishna holds that a scribe may write a promissory note for a debtor even if the creditor is not with him. The Gemara explains: At times, it could happen that one of the men named Yosef ben Shimon goes to a scribe and to witnesses and says to them: Write a promissory note for me, as I wish to borrow money from another Yosef ben Shimon. And then, after they write the document and sign it for him, he will take it and say to the other Yosef ben Shimon: Give me the hundred dinars that you borrowed from me, as attested to in this document. That is the reason why the mishna rules that two people of the same name cannot collect a debt through a promissory note from one another, thereby preventing this occurrence.

转谞讗 讘专讗 住讘专 讗讬谉 讻讜转讘讬谉 砖讟专 诇诇讜讛 注讚 砖讬讛讗 诪诇讜讛 注诪讜

By contrast, the tanna of the other baraita holds that a scribe may not write a promissory note for a debtor unless the creditor is with him and consents to the writing of the document. If one Yosef ben Shimon consents to the writing of the document before the other, they apparently trust one another, and there is no concern that the one holding the promissory note will defraud the other.

谞诪爪讗 诇讗讞讚 讘讬谉 砖讟专讜转讬讜 砖讟专讜 砖诇 讬讜住祝 讘谉 砖诪注讜谉 驻专讜注 砖讟专讜转 砖谞讬讛诐 驻专讜注讬谉 讜讻讜壮 讟注诪讗 讚谞诪爪讗 讛讗 诇讗 谞诪爪讗 诪爪讬 诪驻讬拽 讜讛讗谞谉 讜诇讗 讗讞专 讬讻讜诇 诇讛讜爪讬讗 注诇讬讛谉 砖讟专 讞讜讘 转谞谉

搂 The mishna teaches: If a document is found among one鈥檚 documents stating: The promissory note against Yosef ben Shimon is repaid, and both men named Yosef ben Shimon owed this man money, the promissory notes of both of them are considered repaid, as it cannot be determined which debt was repaid and which is outstanding. The Gemara comments: The implication of the mishna is that the reason this man cannot collect his debt is that this note was found among his papers; but if it was not suddenly found, rather he was always aware of its existence, he could present a promissory note against one of the men named Yosef ben Shimon and collect the debt from him. The Gemara asks: But didn鈥檛 we learn earlier in the mishna: Nor can another present a promissory note against either of them?

讗诪专 专讘讬 讬专诪讬讛 讘诪砖讜诇砖讬谉

Rabbi Yirmeya said: This later line in the mishna is stated with regard to a promissory note in which the debtors Yosef ben Shimon are identified by having their names tripled, i.e., through mentioning the name of their respective grandfathers, as is explained at the end of the mishna.

讜谞讞讝讬 转讘专讗 讘砖诪讗 讚诪讗谉 讚讻转讬讘 讗诪专 专讘 讛讜砖注讬讗 讘诪砖讜诇砖讬谉 讘砖讟专 讜讗讬谉 诪砖讜诇砖讬谉 讘砖讜讘专

The Gemara questions this explanation: But let us see in whose name the receipt, i.e., the note stating that Yosef ben Shimon鈥檚 debt has been repaid, is written. Why is there uncertainty as to which Yosef ben Shimon is referred to in the document? Rav Hoshaya said: The case is where the debtors are identified by having their names tripled in the promissory note, but the names are not tripled in the receipt.

讗讘讬讬 讗诪专 讛讻讬 拽讗诪专 谞诪爪讗 诇诇讜讛 讘讬谉 砖讟专讜转讬讜 砖讟专讜 砖诇 讬讜住祝 讘谉 砖诪注讜谉 注诇讬 驻专讜注 砖讟专讜转 砖谞讬讛诐 驻专讜注讬谉

Abaye stated a different answer to this question, that the mishna is speaking about the debtor, not the creditor, and this is what it is saying: If a receipt is found among the debtor鈥檚 documents stating: The promissory note of Yosef ben Shimon against me has been repaid, and this debtor had borrowed money from both men named Yosef ben Shimon, the promissory notes of both of them are considered repaid, i.e., they are not valid for collection, as it cannot be determined which debt was paid and which one is outstanding.

讻讬爪讚 讬注砖讜 讬砖诇砖讜 讻讜壮 转谞讗 讗诐 讛讬讜 砖谞讬讛诐 讻讛谞讬诐 讬讻转讘讜 讚讜专讜转

The mishna teaches: What should two people with the same name in a single city do in order to conduct their business? They should triple their names by writing three generations: Yosef ben Shimon ben so-and-so. If their grandfather鈥檚 names are identical and they have no prominent physical difference to indicate who is the one listed in the document, they write that the one referred to in the document is a priest, if that is the case. The Sages taught the following continuation of the mishna in a baraita: And if both of them were priests, they should write several generations of ancestors, until a divergence in names is found that can serve as a means of identification.

诪转谞讬壮 讛讗讜诪专 诇讘谞讜 砖讟专 讘讬谉 砖讟专讜转讬 驻专讜注 讜讗讬谞讬 讬讜讚注 讗讬 讝讛讜 砖讟专讜转 讻讜诇谉 驻专讜注讬谉 谞诪爪讗 诇讗讞讚 砖诐 砖谞讬诐 讛讙讚讜诇 驻专讜注 讜讛拽讟谉 讗讬谞讜 驻专讜注

MISHNA: In the case of one who says to his son before dying: One promissory note among the promissory notes in my possession is repaid, but I do not know which one, the promissory notes of all of those who owe him money are considered repaid, i.e., they are not valid for collection, as it cannot be determined which debt was repaid and which are outstanding. If there were found among his papers two promissory notes owed by one person, the one for the greater amount is considered repaid, and the one for the smaller amount is not considered repaid and can be collected; the debtor is favored in the case of an uncertainty.

讙诪壮 讗诪专 专讘讗 砖讟专 诇讱 讘讬讚讬 驻专讜注 讛讙讚讜诇 驻专讜注 讜讛拽讟谉 讗讬谞讜 驻专讜注 讞讜讘 诇讱 讘讬讚讬 驻专讜注 砖讟专讜转 讻讜诇谉 驻专讜注讬谉

GEMARA: Rava says that if a creditor says to a debtor who borrowed money twice from him: One promissory note of the two that I have of yours in my possession is repaid, without specifying which one, the one for the greater amount is considered repaid, and the one for the smaller amount is not considered repaid, and can be collected. If the creditor said instead: The debt of yours that I have in my possession is repaid, all the promissory notes this creditor has from this debtor are considered repaid, as the term debt covers all the loans at once.

讗诪专 诇讬讛 专讘讬谞讗 诇专讘讗 讗诇讗 诪注转讛 砖讚讬 诪讻讜专讛 诇讱 砖讚讛 讙讚讜诇讛 诪讻讜专讛 诇讜 砖讚讛 砖讬砖 诇讬 诪讻讜专讛 诇讱 讻诇 砖讚讜转讬讜 诪讻讜专讬谉 诇讜

Ravina said to Rava: If that is so that when one makes an ambiguous statement it is interpreted to his detriment, does the same halakha apply to sales? If a seller of land writes a document for a purchaser stating: My field is hereby sold to you, without specifying which of his two fields he is referring to, is it the larger field that is sold to him? And if he writes a document for the purchaser stating: The field that I have is sold to you, is it so that all of his fields are sold to him, as the Hebrew word for field can refer to several fields as well as a single field?

讛转诐 讬讚 讘注诇 讛砖讟专 注诇 讛转讞转讜谞讛

Rava explains: There, the holder of the document of sale is at a disadvantage, as it is he who seeks to take more property from the seller, and must accept the minimal meaning. Here too, in the case of the promissory notes, it is the holder of the document, the creditor, who seeks to collect more money from the debtor. Therefore, the creditor is at a disadvantage.

诪转谞讬壮 讛诪诇讜讛 讗转 讞讘讬专讜 注诇 讬讚讬 注专讘 诇讗 讬驻专注 诪谉 讛注专讘

MISHNA: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor.

讜讗诐 讗诪专 诇讜 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讬驻专注 诪谉 讛注专讘 专讘谉 砖诪注讜谉 讘谉 讙诪诇讬讗诇 讗讜诪专 讗诐 讬砖 谞讻住讬诐 诇诇讜讛 讘讬谉 讻讱 讜讘讬谉 讻讱 诇讗 讬驻专注 诪谉 讛注专讘

But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, i.e., either the debtor or the guarantor, he can collect the debt from the guarantor. Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor.

讜讻谉 讛讬讛 专讘谉 砖诪注讜谉 讘谉 讙诪诇讬讗诇 讗讜诪专 讛注专讘 诇讗砖讛 讘讻转讜讘转讛 讜讛讬讛 讘注诇讛 诪讙专砖讛 讬讚讬专谞讛 讛谞讗讛 砖诪讗 讬注砖讜 拽谞讜谞讬讗 注诇 谞讻住讬诐 砖诇 讝讛 讜讬讞讝讬专 讗转 讗砖转讜

And so Rabban Shimon ben Gamliel would say: If there is a guarantor for a woman for her marriage contract, from whom the woman can collect payment of her marriage contract instead of collecting it from the husband, and her husband was divorcing her, the husband must take a vow prohibiting himself from deriving any benefit from her, so that he can never remarry her. This precaution is taken lest the couple collude [kenunya] to divorce in order to collect payment of the marriage contract from this guarantor鈥檚 property, and then the husband will remarry his wife.

讙诪壮 诪讗讬 讟注诪讗 专讘讛 讜专讘 讬讜住祝 讚讗诪专讬 转专讜讬讬讛讜 讙讘专讗 讗砖诇讬诪转 诇讬 讙讘专讗 讗砖诇讬诪讬 诇讱

GEMARA: The mishna teaches: One who lends money to another with a guarantor cannot collect the debt from the guarantor. The Gemara at first understands that the mishna is ruling that a guarantor鈥檚 commitment is limited to when the debtor dies or flees. What is the reason the guarantor鈥檚 commitment is limited? Rabba and Rav Yosef both say that the guarantor can tell the creditor: You gave a man over to me, to take responsibility for him if he dies or flees; I have given a man back to you. The debtor is here before you; take your money from him, and if he has nothing, suffer the loss yourself.

诪转拽讬祝 诇讛 专讘 谞讞诪谉 讛讗讬 讚讬谞讗 讚驻专住讗讬

Rav Na岣an objects to this: This is Persian law.

讗讚专讘讛 讘转专 注专讘讗 讗讝诇讬

The Gemara interjects: On the contrary, the Persian courts go after the guarantor directly, without even attempting to collect the debt from the debtor himself. Why, then, did Rav Na岣an say that excusing the guarantor from payment is Persian law?

讗诇讗 讘讬 讚讬谞讗 讚驻专住讗讬 讚诇讗 讬讛讘讬 讟注诪讗 诇诪讬诇转讬讬讛讜

The Gemara clarifies Rav Na岣an鈥檚 intent: Rather, Rav Na岣an meant to say that this kind of ruling would be appropriate for the members of a Persian court, who do not give a reason for their statements, but issue rulings by whim. Rav Na岣an was saying that it is not fair or logical to excuse the guarantor and cause a loss to the creditor who was depending on him.

讗诇讗 讗诪专 专讘 谞讞诪谉 诪讗讬 诇讗 讬驻专注 诪谉 讛注专讘 诇讗 讬转讘注 注专讘 转讞诇讛

Rather, Rav Na岣an said: What does the mishna mean when it says that the creditor cannot collect the debt from the guarantor? It means that he cannot claim payment from the guarantor at the outset, until after it is established that the debtor has no means to repay the debt. After the borrower defaults, the creditor can collect the debt from the guarantor.

转谞讬讗 谞诪讬 讛讻讬 讛诪诇讜讛 讗转 讞讘讬专讜 注诇 讬讚讬 注专讘 诇讗 讬转讘注 注专讘 转讞诇讛 讜讗诐 讗诪专 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讬转讘注 注专讘 转讞诇讛

This halakha is also taught in a baraita: One who lends money to another with the assurance of a guarantor cannot claim payment of the debt from the guarantor at the outset, rather, he must first attempt to collect the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can claim payment of the debt from the guarantor at the outset, bypassing the debtor.

讗诪专 专讘 讛讜谞讗 诪谞讬谉 诇注专讘 讚诪砖转注讘讚 讚讻转讬讘 讗谞讻讬 讗注专讘谞讜 诪讬讚讬 转讘拽砖谞讜

Rav Huna said: From where is it derived that a guarantor becomes obligated to repay a loan he has guaranteed? As it is written that Judah reassured his father concerning the young Benjamin: 鈥淚 will be his guarantor; of my hand shall you request him鈥 (Genesis 43:9). This teaches that it is possible for one to act as a guarantor that an item will be returned to the giver.

诪转拽讬祝 诇讛 专讘 讞住讚讗 讛讗 拽讘诇谞讜转 讛讬讗 讚讻转讬讘 转谞讛 讗转讜 注诇 讬讚讬 讜讗谞讬 讗砖讬讘谞讜

Rav 岣sda objects to this: This incident involving Benjamin is not a case of a standard guarantor, but a case of an unconditional guarantee, as it is written, also in the context of Benjamin, that Reuben said: 鈥淒eliver him into my hand, and I will bring him back to you鈥 (Genesis 42:37). One who undertakes unconditional responsibility for a loan has a different status than a standard guarantor, as will soon be elaborated. Therefore, a biblical source has yet to be adduced to teach that one can become a standard guarantor.

讗诇讗 讗诪专 专讘讬 讬爪讞拽 诪讛讻讗 诇拽讞 讘讙讚讜 讻讬 注专讘 讝专 讜讘注讚 谞讻专讬讛 讞讘诇讛讜

Rather, Rabbi Yitz岣k said that the source is from here: 鈥淭ake his garment that is surety for a stranger; and hold him in pledge that is surety for an alien woman鈥 (Proverbs 20:16). The verse advises a creditor to take the garment of the debtor鈥檚 guarantor as payment for the loan.

讜讗讜诪专 讘谞讬 讗诐 注专讘转 诇专注讱 转拽注转 诇讝专 讻驻讬讱 谞讜拽砖转 讘讗诪专讬 驻讬讱 谞诇讻讚转 讘讗诪专讬 驻讬讱 注砖讛 讝讗转 讗驻讜讗 讘谞讬 讜讛谞爪诇 讻讬 讘讗转 讘讻祝 专注讱 诇讱 讛转专驻住 讜专讛讘 专注讬讱 讗诐 诪诪讜谉 讬砖 诇讜 讘讬讚讱 讛转专 诇讜 驻讬住转 讬讚 讜讗诐 诇讗讜 讛专讘讛 注诇讬讜 专讬注讬诐

And it is stated: 鈥淢y son, if you have become surety for your neighbor, if you have shaken your hands for a stranger, you have become ensnared by the words of your mouth, you have been caught by the words of your mouth. Do this now, my son, and save yourself, seeing that you have come into the hand of your neighbor: Go, humble yourself [hitrappes], and assemble your neighbors鈥 (Proverbs 6:1鈥3). This last part of the passage means: If your neighbor鈥檚 money is in your possession, as you owe it as a guarantor, open up [hatter] the palm [pissat] of your hand and repay him. And if it is not money that you owe him, but rather 鈥測ou have become ensnared by the words of your mouth鈥 and owe him an apology for a personal slight, gather together many neighbors through which to seek his forgiveness.

讗诪专 讗诪讬诪专 注专讘 讚诪砖转注讘讚 诪讞诇讜拽转 专讘讬 讬讛讜讚讛 讜专讘讬 讬讜住讬 诇专讘讬 讬讜住讬 讚讗诪专 讗住诪讻转讗 拽谞讬讗 注专讘 诪砖转注讘讚 诇专讘讬 讬讛讜讚讛 讚讗诪专 讗住诪讻转讗 诇讗 拽谞讬讗 注专讘 诇讗 诪砖转注讘讚

Ameimar said: The issue of whether or not a guarantor in fact becomes obligated to repay the loan he has guaranteed is a dispute between Rabbi Yehuda and Rabbi Yosei. According to Rabbi Yosei, who says that a transaction with inconclusive consent [asmakhta] effects acquisition, a guarantor becomes obligated to repay the loan, whereas according to Rabbi Yehuda, who says that an asmakhta does not effect acquisition, a guarantor does not become obligated to repay the loan. Any obligation one undertakes that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in this case the debtor鈥檚 default on the loan, is considered an asmakhta.

讗诪专 诇讬讛 专讘 讗砖讬 诇讗诪讬诪专 讛讗 诪注砖讬诐 讘讻诇 讬讜诐 讚讗住诪讻转讗 诇讗 拽谞讬讗 讜注专讘 诪砖转注讘讚

Rav Ashi said to Ameimar that he was conflating these two issues: But it is a daily occurrence, i.e., it is taken for granted, that an asmakhta does not effect acquisition, and it is also taken for granted that a guarantor becomes obligated to repay the loan he has guaranteed.

讗诇讗 讗诪专 专讘 讗砖讬 讘讛讛讜讗 讛谞讗讛 讚拽讗 诪讛讬诪谉 诇讬讛 讙诪专 讜诪砖转注讘讚 谞驻砖讬讛

Rather, Rav Ashi said: Through that satisfaction that the guarantor feels when the creditor trusts him and loans the money based on his guarantee, the guarantor resolves to obligate himself to repay the loan. Guaranteeing a loan is unlike a usual case of an obligation undertaken that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in which the commitment is not considered a real one. Here, the one obligating himself experiences a sense of satisfaction when the money is loaned to the debtor, and due to that, fully commits to fulfill his obligation.

讜讗诐 讗诪专 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讻讜壮 讗诪专 专讘讛 讘专 讘专 讞谞讛 讗诪专 专讘讬 讬讜讞谞谉 诇讗 砖谞讜 讗诇讗 砖讗讬谉 谞讻住讬诐 诇诇讜讛 讗讘诇 讬砖 谞讻住讬诐 诇诇讜讛 诇讗 讬驻专注 诪谉 讛注专讘

搂 The mishna teaches: But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. Rabba bar bar 岣na says that Rabbi Yo岣nan says: They taught this only when the debtor has no property of his own from which to repay the loan, but if the debtor has property the creditor cannot collect the debt from the guarantor.

讜讛讗 诪讚拽转谞讬 住讬驻讗 专讘谉 砖诪注讜谉 讘谉 讙诪诇讬讗诇 讗讜诪专 讗诐 讬砖 谞讻住讬诐 诇诇讜讛 诇讗 讬驻专注 诪谉 讛注专讘 诪讻诇诇 讚转谞讗 拽诪讗 住讘专 诇讗 砖谞讗 讛讻讬 讜诇讗 砖谞讗 讛讻讬

The Gemara questions this assertion: But from the fact that the latter clause of the mishna teaches that Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor, by inference one can understand that the first tanna maintains that there is no difference if it is like this and there is no difference if it is like that. Whether or not the debtor has property from which to repay the loan, the creditor can collect the debt from the guarantor.

讞住讜专讬 诪讞住专讗 讜讛讻讬 拽转谞讬 讛诪诇讜讛 讗转 讞讘讬专讜 注诇 讬讚讬 注专讘 诇讗 讬驻专注 诪谉 讛注专讘 讜讗诐 讗诪专 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讬驻专注 诪谉 讛注专讘 讘诪讛 讚讘专讬诐 讗诪讜专讬诐 讘砖讗讬谉 谞讻住讬诐 诇诇讜讛 讗讘诇 讬砖 谞讻住讬诐 诇诇讜讛 诇讗 讬驻专注 诪谉 讛注专讘 讜拽讘诇谉 讗祝 注诇 驻讬 砖讬砖 谞讻住讬诐 诇诇讜讛 讬驻专注 诪谉 讛拽讘诇谉

The Gemara clarifies: The mishna is incomplete and this is what it is teaching: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor before first claiming the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. In what case is this statement said? When the debtor has no property of his own from which to repay the debt; but if the debtor has property, the creditor cannot collect the debt from the guarantor. This is the halakha with regard to a standard guarantor, but in the case of an unconditional guarantor, even if the debtor has property of his own, the creditor can collect the debt from the unconditional guarantor.

  • This month's learning is sponsored by Ron and Shira Krebs to commemorate the 73rd yahrzeit of Shira's grandfather (Yitzchak Leib Ben David Ber HaCohen v'Malka), the 1st yahrzeit of Shira's father (Gershon Pinya Ben Yitzchak Leib HaCohen v'Menucha Sara), and the bar mitzvah of their son Eytan who will be making a siyum on Mishna Shas this month.

  • This month's learning is sponsored for the refuah shleima of Naama bat Yael Esther.

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Bava Batra 173

The William Davidson Talmud | Powered by Sefaria

Bava Batra 173

讜讗诇讗 讛讗 讚转谞讬讗 讻砖诐 砖讗讬谉 诪讜爪讬讗讬谉 砖讟专 讞讜讘 讝讛 注诇 讝讛 讻讱 讗讬谉 诪讜爪讬讗讬谉 注诇 讗讞专讬诐 讘诪讗讬 拽诪讬驻诇讙讬

The Gemara asks: And what of that which is taught in another baraita: Just as the two men named Yosef ben Shimon cannot produce a promissory note, this one against that one, so they cannot produce promissory notes against others, as those others can claim: I did not borrow from you but from the other Yosef ben Shimon, and somehow the note he was holding is in your possession? This baraita contradicts the mishna, from which it was inferred that one of the two men named Yosef ben Shimon can produce promissory notes to collect the debt from others. With regard to what principle do the mishna and baraita disagree?

讘讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 拽诪讬驻诇讙讬

They disagree with regard to whether letters, i.e., the content of a promissory note, are acquired by merely transferring the document to a new owner. In other words, they disagree about whether or not a creditor can transfer his right to collect a debt to another by merely transferring the document to him.

转谞讗 讚讬讚谉 住讘专 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 讜转谞讗 讘专讗 住讘专 讗讬谉 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛

The tanna of our mishna maintains that letters are acquired by transferring the document. There is no concern that the promissory note was inadvertently transferred from one Yosef ben Shimon to the other by being lost and then found, as explained earlier. Nevertheless, there is still the possibility that one Yosef ben Shimon deliberately transferred the promissory note to the other, transferring the right of collection to him. According to this tanna, the second Yosef ben Shimon is fully entitled to collect the debt by producing the promissory note. And the tanna of the baraita holds that letters are not acquired by transferring the document, so that even if one Yosef ben Shimon transferred his promissory note to the other, the new holder of the document is not entitled to collect the debt.

讜讗讬 讘注讬转 讗讬诪讗 讚讻讜诇讬 注诇诪讗 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 讜讛讻讗 讘爪专讬讱 诇讛讘讬讗 专讗讬讛 拽讗 诪讬驻诇讙讬 转谞讗 讚讬讚谉 住讘专 讗讬谉 爪专讬讱 诇讛讘讬讗 专讗讬讛 讜转谞讗 讘专讗 住讘专 爪专讬讱 诇讛讘讬讗 专讗讬讛

And if you wish, say that everyone, i.e., both the tanna of the mishna and the tanna of the baraita, holds that letters are acquired by transferring the document, and here they disagree with regard to whether or not the new holder of the promissory note is required to bring proof that the original creditor transferred it to him for collection, as opposed to his having received it for safekeeping or having found it by chance. The tanna of our mishna holds that the present holder of the document is not required to bring proof that the debt was transferred to him and therefore he can collect the debt through the promissory note in his possession. And the tanna of the baraita holds that he is required to bring such proof, and in its absence he cannot collect the debt with the document he holds.

讚讗讬转诪专 讗讜转讬讜转 谞拽谞讜转 讘诪住讬专讛 讗讘讬讬 讗诪专 爪专讬讱 诇讛讘讬讗 专讗讬讛 讜专讘讗 讗诪专 讗讬谞讜 爪专讬讱 诇讛讘讬讗 专讗讬讛

This is as it was stated: Letters are acquired by transferring the document. Abaye says: The new holder of the document is required to bring proof that he has in fact acquired the right to collect the debt. And Rava says: He is not required to bring such proof; it is assumed that if he is holding the document it was transferred to him knowingly by the original creditor.

讗诪专 讗讘讬讬 诪谞讗 讗诪讬谞讗 诇讛 讚转谞讬讗 讗讞讚 诪谉 讛讗讞讬谉 砖讛砖讟专 讞讜讘 讬讜爪讗 诪转讞转 讬讚讜 注诇讬讜 诇讛讘讬讗 专讗讬讛 诪讗讬 诇讗讜 讛讜讗 讛讚讬谉 诇讗讞专讬谞讬

Abaye said: From where do I say that he is required to bring proof? This is as it is taught in a baraita: In the case of one of several brothers, heirs of an estate, who has a promissory note in his possession listing a debt owed to the deceased father, and he seeks to collect the debt for himself, it is upon him to bring proof that the document was transferred to him legally by his father in his lifetime, or that it was bequeathed to him specifically and he did not appropriate it from the other brothers. Abaye concludes from this: What, is the same not true for all others in a similar situation? In other words, whenever someone holds a promissory note that did not initially belong to him he is required to prove that he acquired it legally.

讜专讘讗 讗诪专 砖讗谞讬 讗讞讬谉 讚砖诪讟讜 诪讛讚讚讬

And Rava said in response: Proof is not generally required in such a case. But the case of brothers who are heirs is different, as it is common for brothers who are co-heirs to seize property belonging to the estate from one another.

讗讬讻讗 讚讗诪专讬 讗诪专 专讘讗 诪谞讗 讗诪讬谞讗 诇讛 讚转谞讬讗 讗讞讚 诪谉 讛讗讞讬谉 砖讛砖讟专 讞讜讘 讬讜爪讗 诪转讞转 讬讚讜 注诇讬讜 诇讛讘讬讗 专讗讬讛 讗讞讬谉 讛讜讗 讚砖诪讟讜 诪讛讚讚讬 讗讘诇 讗讞专讬谞讬 诇讗

There are those who say there is a different version of this exchange between Abaye and Rava. According to this version, Rava said: From where do I say that no proof is required? As it is taught in a baraita: In the case of one of several brothers, heirs of an estate, who has a promissory note in his possession listing a debt owed to the deceased father, and he seeks to collect the debt for himself, it is upon him to bring proof that the document was transferred to him legally by his father in his lifetime, or that it was bequeathed to him specifically and that he did not appropriate it from the other brothers. The implication is that it is only brothers who must bring such proof, as it is common for brothers who are co-heirs to seize property belonging to the estate from one another. But others in a similar situation do not have to bring proof that they acquired the promissory note legally.

讜讗讘讬讬 讗讞讬谉 讗讬爪讟专讬讻讗 诇讬讛 住诇拽讗 讚注转讱 讗诪讬谞讗 讻讬讜谉 讚砖诪讟讜 诪讛讚讚讬 讗讬诪讗 诪讬讝讚讛专 讝讛讬专讬 讜诇讗 爪专讬讻讬 诇讛讘讬讗 专讗讬讛 拽诪砖诪注 诇谉

And how would Abaye counter this proof? He would say: There is no difference between brothers and anyone else; they all have to bring proof. The baraita specifies brothers because it was necessary for it to mention that case, as it might enter your mind to say that since it is common for brothers who are co-heirs to seize property belonging to the estate from one another, one might say that they are careful to prevent such attempts. And therefore, when brothers produce a promissory note, they are not required to bring proof that they obtained it legally, as it is assumed that the other brothers would not have allowed the note to escape their possession otherwise. To counter this, the baraita teaches us that brothers, too, must bring proof when they produce promissory notes.

讜讗诇讗 讛讗 讚转谞讬讗 讻砖诐 砖诪讜爪讬讗讬谉 讛谉 砖讟专 讞讜讘 注诇 讗讞专讬诐 讻讱 诪讜爪讬讗讬谉 讝讛 注诇 讝讛 讘诪讗讬 拽诪讬驻诇讙讬

搂 The Gemara returns to discuss the case of two men with the same name. But what about that which is taught in another baraita: Just as the two men named Yosef ben Shimon can produce a promissory note against others, so can they produce promissory notes against one another. This represents a third opinion, standing in opposition to both the mishna and the previous baraita. The Gemara asks: With regard to what do the mishna and first baraita on the one hand, and this baraita on the other, disagree?

讘讻讜转讘讬谉 砖讟专 诇诇讜讛 讜讗祝 注诇 驻讬 砖讗讬谉 诪诇讜讛 注诪讜 拽诪讬驻诇讙讬

The Gemara answers: They disagree about whether or not a scribe may write a promissory note for a debtor even if the creditor is not with him.

转谞讗 讚讬讚谉 住讘专 讻讜转讘讬谉 砖讟专 诇诇讜讛 讜讗祝 注诇 驻讬 砖讗讬谉 诪诇讜讛 注诪讜 讝讬诪谞讬谉 讚讗讝讬诇 诇讙讘讬 住驻专讗 讜住讛讚讬 讜讗诪专 诇讛讜 讻转讘讜 诇讬 砖讟专讗 讚讘注讬谞谉 诇诪讬讝祝 诪讬讜住祝 讘谉 砖诪注讜谉 讞讘专讬 讜讘转专 讚讻转讘讬 讜讞转诪讬 诇讬讛 谞拽讬讟讗 诇讬讛 讜讗诪专 诇讬讛 讛讘 诇讬 诪讗讛 讚讬讝驻转 诪讬谞讗讬

The tanna of our mishna holds that a scribe may write a promissory note for a debtor even if the creditor is not with him. The Gemara explains: At times, it could happen that one of the men named Yosef ben Shimon goes to a scribe and to witnesses and says to them: Write a promissory note for me, as I wish to borrow money from another Yosef ben Shimon. And then, after they write the document and sign it for him, he will take it and say to the other Yosef ben Shimon: Give me the hundred dinars that you borrowed from me, as attested to in this document. That is the reason why the mishna rules that two people of the same name cannot collect a debt through a promissory note from one another, thereby preventing this occurrence.

转谞讗 讘专讗 住讘专 讗讬谉 讻讜转讘讬谉 砖讟专 诇诇讜讛 注讚 砖讬讛讗 诪诇讜讛 注诪讜

By contrast, the tanna of the other baraita holds that a scribe may not write a promissory note for a debtor unless the creditor is with him and consents to the writing of the document. If one Yosef ben Shimon consents to the writing of the document before the other, they apparently trust one another, and there is no concern that the one holding the promissory note will defraud the other.

谞诪爪讗 诇讗讞讚 讘讬谉 砖讟专讜转讬讜 砖讟专讜 砖诇 讬讜住祝 讘谉 砖诪注讜谉 驻专讜注 砖讟专讜转 砖谞讬讛诐 驻专讜注讬谉 讜讻讜壮 讟注诪讗 讚谞诪爪讗 讛讗 诇讗 谞诪爪讗 诪爪讬 诪驻讬拽 讜讛讗谞谉 讜诇讗 讗讞专 讬讻讜诇 诇讛讜爪讬讗 注诇讬讛谉 砖讟专 讞讜讘 转谞谉

搂 The mishna teaches: If a document is found among one鈥檚 documents stating: The promissory note against Yosef ben Shimon is repaid, and both men named Yosef ben Shimon owed this man money, the promissory notes of both of them are considered repaid, as it cannot be determined which debt was repaid and which is outstanding. The Gemara comments: The implication of the mishna is that the reason this man cannot collect his debt is that this note was found among his papers; but if it was not suddenly found, rather he was always aware of its existence, he could present a promissory note against one of the men named Yosef ben Shimon and collect the debt from him. The Gemara asks: But didn鈥檛 we learn earlier in the mishna: Nor can another present a promissory note against either of them?

讗诪专 专讘讬 讬专诪讬讛 讘诪砖讜诇砖讬谉

Rabbi Yirmeya said: This later line in the mishna is stated with regard to a promissory note in which the debtors Yosef ben Shimon are identified by having their names tripled, i.e., through mentioning the name of their respective grandfathers, as is explained at the end of the mishna.

讜谞讞讝讬 转讘专讗 讘砖诪讗 讚诪讗谉 讚讻转讬讘 讗诪专 专讘 讛讜砖注讬讗 讘诪砖讜诇砖讬谉 讘砖讟专 讜讗讬谉 诪砖讜诇砖讬谉 讘砖讜讘专

The Gemara questions this explanation: But let us see in whose name the receipt, i.e., the note stating that Yosef ben Shimon鈥檚 debt has been repaid, is written. Why is there uncertainty as to which Yosef ben Shimon is referred to in the document? Rav Hoshaya said: The case is where the debtors are identified by having their names tripled in the promissory note, but the names are not tripled in the receipt.

讗讘讬讬 讗诪专 讛讻讬 拽讗诪专 谞诪爪讗 诇诇讜讛 讘讬谉 砖讟专讜转讬讜 砖讟专讜 砖诇 讬讜住祝 讘谉 砖诪注讜谉 注诇讬 驻专讜注 砖讟专讜转 砖谞讬讛诐 驻专讜注讬谉

Abaye stated a different answer to this question, that the mishna is speaking about the debtor, not the creditor, and this is what it is saying: If a receipt is found among the debtor鈥檚 documents stating: The promissory note of Yosef ben Shimon against me has been repaid, and this debtor had borrowed money from both men named Yosef ben Shimon, the promissory notes of both of them are considered repaid, i.e., they are not valid for collection, as it cannot be determined which debt was paid and which one is outstanding.

讻讬爪讚 讬注砖讜 讬砖诇砖讜 讻讜壮 转谞讗 讗诐 讛讬讜 砖谞讬讛诐 讻讛谞讬诐 讬讻转讘讜 讚讜专讜转

The mishna teaches: What should two people with the same name in a single city do in order to conduct their business? They should triple their names by writing three generations: Yosef ben Shimon ben so-and-so. If their grandfather鈥檚 names are identical and they have no prominent physical difference to indicate who is the one listed in the document, they write that the one referred to in the document is a priest, if that is the case. The Sages taught the following continuation of the mishna in a baraita: And if both of them were priests, they should write several generations of ancestors, until a divergence in names is found that can serve as a means of identification.

诪转谞讬壮 讛讗讜诪专 诇讘谞讜 砖讟专 讘讬谉 砖讟专讜转讬 驻专讜注 讜讗讬谞讬 讬讜讚注 讗讬 讝讛讜 砖讟专讜转 讻讜诇谉 驻专讜注讬谉 谞诪爪讗 诇讗讞讚 砖诐 砖谞讬诐 讛讙讚讜诇 驻专讜注 讜讛拽讟谉 讗讬谞讜 驻专讜注

MISHNA: In the case of one who says to his son before dying: One promissory note among the promissory notes in my possession is repaid, but I do not know which one, the promissory notes of all of those who owe him money are considered repaid, i.e., they are not valid for collection, as it cannot be determined which debt was repaid and which are outstanding. If there were found among his papers two promissory notes owed by one person, the one for the greater amount is considered repaid, and the one for the smaller amount is not considered repaid and can be collected; the debtor is favored in the case of an uncertainty.

讙诪壮 讗诪专 专讘讗 砖讟专 诇讱 讘讬讚讬 驻专讜注 讛讙讚讜诇 驻专讜注 讜讛拽讟谉 讗讬谞讜 驻专讜注 讞讜讘 诇讱 讘讬讚讬 驻专讜注 砖讟专讜转 讻讜诇谉 驻专讜注讬谉

GEMARA: Rava says that if a creditor says to a debtor who borrowed money twice from him: One promissory note of the two that I have of yours in my possession is repaid, without specifying which one, the one for the greater amount is considered repaid, and the one for the smaller amount is not considered repaid, and can be collected. If the creditor said instead: The debt of yours that I have in my possession is repaid, all the promissory notes this creditor has from this debtor are considered repaid, as the term debt covers all the loans at once.

讗诪专 诇讬讛 专讘讬谞讗 诇专讘讗 讗诇讗 诪注转讛 砖讚讬 诪讻讜专讛 诇讱 砖讚讛 讙讚讜诇讛 诪讻讜专讛 诇讜 砖讚讛 砖讬砖 诇讬 诪讻讜专讛 诇讱 讻诇 砖讚讜转讬讜 诪讻讜专讬谉 诇讜

Ravina said to Rava: If that is so that when one makes an ambiguous statement it is interpreted to his detriment, does the same halakha apply to sales? If a seller of land writes a document for a purchaser stating: My field is hereby sold to you, without specifying which of his two fields he is referring to, is it the larger field that is sold to him? And if he writes a document for the purchaser stating: The field that I have is sold to you, is it so that all of his fields are sold to him, as the Hebrew word for field can refer to several fields as well as a single field?

讛转诐 讬讚 讘注诇 讛砖讟专 注诇 讛转讞转讜谞讛

Rava explains: There, the holder of the document of sale is at a disadvantage, as it is he who seeks to take more property from the seller, and must accept the minimal meaning. Here too, in the case of the promissory notes, it is the holder of the document, the creditor, who seeks to collect more money from the debtor. Therefore, the creditor is at a disadvantage.

诪转谞讬壮 讛诪诇讜讛 讗转 讞讘讬专讜 注诇 讬讚讬 注专讘 诇讗 讬驻专注 诪谉 讛注专讘

MISHNA: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor.

讜讗诐 讗诪专 诇讜 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讬驻专注 诪谉 讛注专讘 专讘谉 砖诪注讜谉 讘谉 讙诪诇讬讗诇 讗讜诪专 讗诐 讬砖 谞讻住讬诐 诇诇讜讛 讘讬谉 讻讱 讜讘讬谉 讻讱 诇讗 讬驻专注 诪谉 讛注专讘

But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, i.e., either the debtor or the guarantor, he can collect the debt from the guarantor. Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor.

讜讻谉 讛讬讛 专讘谉 砖诪注讜谉 讘谉 讙诪诇讬讗诇 讗讜诪专 讛注专讘 诇讗砖讛 讘讻转讜讘转讛 讜讛讬讛 讘注诇讛 诪讙专砖讛 讬讚讬专谞讛 讛谞讗讛 砖诪讗 讬注砖讜 拽谞讜谞讬讗 注诇 谞讻住讬诐 砖诇 讝讛 讜讬讞讝讬专 讗转 讗砖转讜

And so Rabban Shimon ben Gamliel would say: If there is a guarantor for a woman for her marriage contract, from whom the woman can collect payment of her marriage contract instead of collecting it from the husband, and her husband was divorcing her, the husband must take a vow prohibiting himself from deriving any benefit from her, so that he can never remarry her. This precaution is taken lest the couple collude [kenunya] to divorce in order to collect payment of the marriage contract from this guarantor鈥檚 property, and then the husband will remarry his wife.

讙诪壮 诪讗讬 讟注诪讗 专讘讛 讜专讘 讬讜住祝 讚讗诪专讬 转专讜讬讬讛讜 讙讘专讗 讗砖诇讬诪转 诇讬 讙讘专讗 讗砖诇讬诪讬 诇讱

GEMARA: The mishna teaches: One who lends money to another with a guarantor cannot collect the debt from the guarantor. The Gemara at first understands that the mishna is ruling that a guarantor鈥檚 commitment is limited to when the debtor dies or flees. What is the reason the guarantor鈥檚 commitment is limited? Rabba and Rav Yosef both say that the guarantor can tell the creditor: You gave a man over to me, to take responsibility for him if he dies or flees; I have given a man back to you. The debtor is here before you; take your money from him, and if he has nothing, suffer the loss yourself.

诪转拽讬祝 诇讛 专讘 谞讞诪谉 讛讗讬 讚讬谞讗 讚驻专住讗讬

Rav Na岣an objects to this: This is Persian law.

讗讚专讘讛 讘转专 注专讘讗 讗讝诇讬

The Gemara interjects: On the contrary, the Persian courts go after the guarantor directly, without even attempting to collect the debt from the debtor himself. Why, then, did Rav Na岣an say that excusing the guarantor from payment is Persian law?

讗诇讗 讘讬 讚讬谞讗 讚驻专住讗讬 讚诇讗 讬讛讘讬 讟注诪讗 诇诪讬诇转讬讬讛讜

The Gemara clarifies Rav Na岣an鈥檚 intent: Rather, Rav Na岣an meant to say that this kind of ruling would be appropriate for the members of a Persian court, who do not give a reason for their statements, but issue rulings by whim. Rav Na岣an was saying that it is not fair or logical to excuse the guarantor and cause a loss to the creditor who was depending on him.

讗诇讗 讗诪专 专讘 谞讞诪谉 诪讗讬 诇讗 讬驻专注 诪谉 讛注专讘 诇讗 讬转讘注 注专讘 转讞诇讛

Rather, Rav Na岣an said: What does the mishna mean when it says that the creditor cannot collect the debt from the guarantor? It means that he cannot claim payment from the guarantor at the outset, until after it is established that the debtor has no means to repay the debt. After the borrower defaults, the creditor can collect the debt from the guarantor.

转谞讬讗 谞诪讬 讛讻讬 讛诪诇讜讛 讗转 讞讘讬专讜 注诇 讬讚讬 注专讘 诇讗 讬转讘注 注专讘 转讞诇讛 讜讗诐 讗诪专 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讬转讘注 注专讘 转讞诇讛

This halakha is also taught in a baraita: One who lends money to another with the assurance of a guarantor cannot claim payment of the debt from the guarantor at the outset, rather, he must first attempt to collect the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can claim payment of the debt from the guarantor at the outset, bypassing the debtor.

讗诪专 专讘 讛讜谞讗 诪谞讬谉 诇注专讘 讚诪砖转注讘讚 讚讻转讬讘 讗谞讻讬 讗注专讘谞讜 诪讬讚讬 转讘拽砖谞讜

Rav Huna said: From where is it derived that a guarantor becomes obligated to repay a loan he has guaranteed? As it is written that Judah reassured his father concerning the young Benjamin: 鈥淚 will be his guarantor; of my hand shall you request him鈥 (Genesis 43:9). This teaches that it is possible for one to act as a guarantor that an item will be returned to the giver.

诪转拽讬祝 诇讛 专讘 讞住讚讗 讛讗 拽讘诇谞讜转 讛讬讗 讚讻转讬讘 转谞讛 讗转讜 注诇 讬讚讬 讜讗谞讬 讗砖讬讘谞讜

Rav 岣sda objects to this: This incident involving Benjamin is not a case of a standard guarantor, but a case of an unconditional guarantee, as it is written, also in the context of Benjamin, that Reuben said: 鈥淒eliver him into my hand, and I will bring him back to you鈥 (Genesis 42:37). One who undertakes unconditional responsibility for a loan has a different status than a standard guarantor, as will soon be elaborated. Therefore, a biblical source has yet to be adduced to teach that one can become a standard guarantor.

讗诇讗 讗诪专 专讘讬 讬爪讞拽 诪讛讻讗 诇拽讞 讘讙讚讜 讻讬 注专讘 讝专 讜讘注讚 谞讻专讬讛 讞讘诇讛讜

Rather, Rabbi Yitz岣k said that the source is from here: 鈥淭ake his garment that is surety for a stranger; and hold him in pledge that is surety for an alien woman鈥 (Proverbs 20:16). The verse advises a creditor to take the garment of the debtor鈥檚 guarantor as payment for the loan.

讜讗讜诪专 讘谞讬 讗诐 注专讘转 诇专注讱 转拽注转 诇讝专 讻驻讬讱 谞讜拽砖转 讘讗诪专讬 驻讬讱 谞诇讻讚转 讘讗诪专讬 驻讬讱 注砖讛 讝讗转 讗驻讜讗 讘谞讬 讜讛谞爪诇 讻讬 讘讗转 讘讻祝 专注讱 诇讱 讛转专驻住 讜专讛讘 专注讬讱 讗诐 诪诪讜谉 讬砖 诇讜 讘讬讚讱 讛转专 诇讜 驻讬住转 讬讚 讜讗诐 诇讗讜 讛专讘讛 注诇讬讜 专讬注讬诐

And it is stated: 鈥淢y son, if you have become surety for your neighbor, if you have shaken your hands for a stranger, you have become ensnared by the words of your mouth, you have been caught by the words of your mouth. Do this now, my son, and save yourself, seeing that you have come into the hand of your neighbor: Go, humble yourself [hitrappes], and assemble your neighbors鈥 (Proverbs 6:1鈥3). This last part of the passage means: If your neighbor鈥檚 money is in your possession, as you owe it as a guarantor, open up [hatter] the palm [pissat] of your hand and repay him. And if it is not money that you owe him, but rather 鈥測ou have become ensnared by the words of your mouth鈥 and owe him an apology for a personal slight, gather together many neighbors through which to seek his forgiveness.

讗诪专 讗诪讬诪专 注专讘 讚诪砖转注讘讚 诪讞诇讜拽转 专讘讬 讬讛讜讚讛 讜专讘讬 讬讜住讬 诇专讘讬 讬讜住讬 讚讗诪专 讗住诪讻转讗 拽谞讬讗 注专讘 诪砖转注讘讚 诇专讘讬 讬讛讜讚讛 讚讗诪专 讗住诪讻转讗 诇讗 拽谞讬讗 注专讘 诇讗 诪砖转注讘讚

Ameimar said: The issue of whether or not a guarantor in fact becomes obligated to repay the loan he has guaranteed is a dispute between Rabbi Yehuda and Rabbi Yosei. According to Rabbi Yosei, who says that a transaction with inconclusive consent [asmakhta] effects acquisition, a guarantor becomes obligated to repay the loan, whereas according to Rabbi Yehuda, who says that an asmakhta does not effect acquisition, a guarantor does not become obligated to repay the loan. Any obligation one undertakes that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in this case the debtor鈥檚 default on the loan, is considered an asmakhta.

讗诪专 诇讬讛 专讘 讗砖讬 诇讗诪讬诪专 讛讗 诪注砖讬诐 讘讻诇 讬讜诐 讚讗住诪讻转讗 诇讗 拽谞讬讗 讜注专讘 诪砖转注讘讚

Rav Ashi said to Ameimar that he was conflating these two issues: But it is a daily occurrence, i.e., it is taken for granted, that an asmakhta does not effect acquisition, and it is also taken for granted that a guarantor becomes obligated to repay the loan he has guaranteed.

讗诇讗 讗诪专 专讘 讗砖讬 讘讛讛讜讗 讛谞讗讛 讚拽讗 诪讛讬诪谉 诇讬讛 讙诪专 讜诪砖转注讘讚 谞驻砖讬讛

Rather, Rav Ashi said: Through that satisfaction that the guarantor feels when the creditor trusts him and loans the money based on his guarantee, the guarantor resolves to obligate himself to repay the loan. Guaranteeing a loan is unlike a usual case of an obligation undertaken that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in which the commitment is not considered a real one. Here, the one obligating himself experiences a sense of satisfaction when the money is loaned to the debtor, and due to that, fully commits to fulfill his obligation.

讜讗诐 讗诪专 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讻讜壮 讗诪专 专讘讛 讘专 讘专 讞谞讛 讗诪专 专讘讬 讬讜讞谞谉 诇讗 砖谞讜 讗诇讗 砖讗讬谉 谞讻住讬诐 诇诇讜讛 讗讘诇 讬砖 谞讻住讬诐 诇诇讜讛 诇讗 讬驻专注 诪谉 讛注专讘

搂 The mishna teaches: But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. Rabba bar bar 岣na says that Rabbi Yo岣nan says: They taught this only when the debtor has no property of his own from which to repay the loan, but if the debtor has property the creditor cannot collect the debt from the guarantor.

讜讛讗 诪讚拽转谞讬 住讬驻讗 专讘谉 砖诪注讜谉 讘谉 讙诪诇讬讗诇 讗讜诪专 讗诐 讬砖 谞讻住讬诐 诇诇讜讛 诇讗 讬驻专注 诪谉 讛注专讘 诪讻诇诇 讚转谞讗 拽诪讗 住讘专 诇讗 砖谞讗 讛讻讬 讜诇讗 砖谞讗 讛讻讬

The Gemara questions this assertion: But from the fact that the latter clause of the mishna teaches that Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor, by inference one can understand that the first tanna maintains that there is no difference if it is like this and there is no difference if it is like that. Whether or not the debtor has property from which to repay the loan, the creditor can collect the debt from the guarantor.

讞住讜专讬 诪讞住专讗 讜讛讻讬 拽转谞讬 讛诪诇讜讛 讗转 讞讘讬专讜 注诇 讬讚讬 注专讘 诇讗 讬驻专注 诪谉 讛注专讘 讜讗诐 讗诪专 注诇 诪谞转 砖讗驻专注 诪诪讬 砖讗专爪讛 讬驻专注 诪谉 讛注专讘 讘诪讛 讚讘专讬诐 讗诪讜专讬诐 讘砖讗讬谉 谞讻住讬诐 诇诇讜讛 讗讘诇 讬砖 谞讻住讬诐 诇诇讜讛 诇讗 讬驻专注 诪谉 讛注专讘 讜拽讘诇谉 讗祝 注诇 驻讬 砖讬砖 谞讻住讬诐 诇诇讜讛 讬驻专注 诪谉 讛拽讘诇谉

The Gemara clarifies: The mishna is incomplete and this is what it is teaching: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor before first claiming the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. In what case is this statement said? When the debtor has no property of his own from which to repay the debt; but if the debtor has property, the creditor cannot collect the debt from the guarantor. This is the halakha with regard to a standard guarantor, but in the case of an unconditional guarantor, even if the debtor has property of his own, the creditor can collect the debt from the unconditional guarantor.

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