Bava Kamma 8

עידית וזיבורית נזקין בעידית ובעל חוב וכתובת אשה בזיבורית

If he has only superior-quality and inferior-quality land, damages are paid from the superior-quality land, and pay-ments owed to a creditor and payments of a woman’s marriage contract are made from the inferior-quality land.

קתני מיהא מציעא בינונית וזיבורית נזקין ובעל חוב בבינונית וכתובת אשה בזיבורית ואי אמרת בשלו הן שמין תעשה בינונית שלו כעידית וידחה בעל חוב אצל זיבורית

The Gemara explains how this baraita poses a challenge: In any event, the baraita teaches in the middle clause: If he owns only intermediate-quality and inferior-quality land, payments for damages and payments owed to a creditor are made from the intermediate-quality land, and payments of a woman’s marriage contract are made from the inferior-quality land. This clause demonstrates that the quality of land is appraised objectively based on the standard of the world at large. The reason for this is that if you say that the court appraises land based on the quality of the land of the one liable for the damage, let his intermediate-quality land be classified as superior-quality land, as that is the best land he owns, and consequently, the creditor should be directed to collect the debt from the inferior-quality land.

הכא במאי עסקינן כגון שהיתה לו עידית ומכרה

The Gemara rejects this: With what are we dealing here? This is a case where at the time the borrower took the loan he also had superior-quality land and he subsequently sold it. Accordingly, no matter how land is appraised, at the time that the loan was given his intermediate-quality land would be classified as being of intermediate quality. Consequently, the creditor’s lien on the borrower’s land, which took effect from the moment the loan was given, takes effect with regard to the intermediate-quality land. Therefore, the creditor retains his right to collect from that land, regardless of the fact that by the time of collec-tion it was the borrower’s best land and at that point could be reclassified as land of superior quality.

וכן אמר רב חסדא כגון שהיתה לו עידית ומכרה

And so says Rav Ḥisda: The baraita deals with a case where at the time he took the loan he also had superior-quality land and he subsequently sold it.

הכי נמי מסתברא מדקתני אחריתי בינונית וזיבורית נזקין בבינונית בעל חוב וכתובת אשה בזיבורית קשיין אהדדי

The Gemara notes: This too stands to reason, from the fact that another baraita teaches: If a debtor has only intermediate-quality and inferior-quality land, damages are collected from the intermediate-quality land, while payments to a creditor and payments of a woman’s marriage contract are made from the inferior-quality land. These two baraitot are difficult, as they contradict each other. The baraita above teaches that in this case the creditor collects the debt from the intermediate-quality land, whereas this baraita teaches that he collects the debt from the inferior-quality land.

אלא לאו שמע מינה כאן שהיתה לו עידית ומכרה כאן שלא היתה לו עידית ומכרה

Rather, must one not conclude from it that here, in the baraita above, it is a case where he also had superior-quality land at the time that he took the loan and he subsequently sold it, while there, in the baraita subsequently cited, it is a case where he did not have superior-quality land and he did not sell it. In such a case, since his intermediate-quality land was his best land, it is classified as superior-quality land and accordingly, no lien took effect with regard to it.

ואי בעית אימא אידי ואידי שלא היתה לו עידית ומכרה ולא קשיא הא דשויא בינונית שלו כעידית דעלמא וכאן דלא שויא בינונית שלו כעידית דעלמא

And if you wish, say instead that the contradiction between the baraitot can be resolved differently: Both this baraita and that baraita concern cases where the borrower did not have superior-quality land and sell it. And it is not difficult because this second baraita concerns a case where his intermediate-quality land is equivalent in quality to the superior-quality land of the world at large; therefore, it is classified as superior-quality land and the creditor has no right to collect from it. And here, the first baraita concerns a case in which his intermediate-quality land is not equivalent in quality to the superior-quality land of the world at large but is similar to the intermediate-quality land of the world at large; consequently, the creditor has a claim to it.

ואיבעית אימא אידי ואידי כגון שהיתה בינונית שלו כבינונית דעלמא והכא בהא פליגי מר סבר בשלו הן שמין ומר סבר בשל עולם הן שמין

And if you wish, say instead: Both this baraita and that baraita concern a case where the borrower’s intermediate-quality land, which is the best land he owns, is equivalent in quality to the intermediate-quality land of the world at large, and here, the baraitot disagree about this: One Sage, the tanna of the second baraita, holds that the court appraises the debtor’s land based on the quality of his other land, so that his best land is classified as superior-quality land and the creditor has no claim on it. And the other Sage, the tanna of the first baraita, holds that the court appraises the debtor’s land based on the quality of land in the world at large, so that his land is classified as intermediate-quality land and the creditor is entitled to claim it.

רבינא אמר בדעולא פליגי דאמר עולא דבר תורה בעל חוב בזיבורית שנאמר בחוץ תעמוד והאיש אשר אתה נשה בו יוציא אליך את העבוט החוצה מה דרכו של אדם להוציא לחוץ פחות שבכלים ומה טעם אמרו בעל חוב בבינונית כדי שלא תנעול דלת בפני לוין

Ravina said: Another resolution to the contradiction between the baraitot is that the baraitot disagree with regard to the opinion of Ulla, as Ulla says: By Torah law, a creditor collects from inferior-quality land, as it is stated: “You shall stand outside, and the man you have a claim against will bring his collateral out to you” (Deuteronomy 24:11). One can infer: What item would a person typically choose to bring out for use as collateral and potential payment? Certainly it is the most inferior of his utensils. The verse thereby indicates that a creditor collects from inferior-quality land. But if so, for what reason did the Sages say that a creditor collects from intermediate-quality land? They instituted this ordinance so as not to lock the door in the face of potential borrowers, as, if creditors were limited to collecting from inferior-quality land they would be hesitant to offer loans in the first place.

מר אית ליה תקנתא דעולא ומר לית ליה תקנתא דעולא

Ravina explains: One Sage, the tanna of the first baraita, is of the opinion that the ruling is in accordance with the ordinance cited by Ulla that a creditor collects from intermediate-quality land. And the other Sage, the tanna of the second baraita, is not of the opinion that the ruling is in accordance with the ordinance cited by Ulla, so the creditor has a right to collect from only inferior-quality land, in accordance with Torah law.

תנו רבנן מכר לאחד או לשלשה בני אדם כאחד כולן נכנסו תחת הבעלים

§ The Sages taught in the Tosefta (Ketubot 12:3): If one owes money to pay damages, repay a loan, and pay a woman’s marriage contract, and he owns inferior-quality, intermediate-quality, and superior-quality land, and he sells all of his land, then if he sold all of the land to one person or to three people simultaneously, all the buyers replace the land’s prior owner with regard to repayment of his debts. At the time when each debt was created, each creditor gained a lien on the plots of the debtor’s land, from which they have a right to collect. As a lien remains in effect even if the land is sold, then even after the sale, each creditor can collect from the plots of land upon which they have a lien. Accordingly, damages are collected from the superior-quality land, the loan is repaid from the intermediate-quality land, and the marriage contract is paid from the inferior-quality land.

בזה אחר זה כולן גובין מן האחרון אין לו גובה משלפניו אין לו גובה משלפני פניו

If he sold his plots of land one after the other, all the creditors collect from the last buyer, regardless of the quality of the land he purchased. If that buyer does not have sufficient land purchased from the debtor to pay all the debts, the creditors take the land he has and collect the remaining sums from the one who purchased land before him, and if he also does not have sufficient land, they collect the rest from the one before the one before him, i.e., the first buyer. The Sages instituted that creditors may not collect from land that a debtor sold, even though it is technically still liened to them, as long as the debtor still has sufficient means with which to repay the debt (see Gittin 48b). Accordingly, after the sale of the first plot of land, the creditors’ rights to collect are restricted to the land that remains in the possession of the debtor, and consequently they gain a lien on it, irrespective of its quality. Therefore, even if that land is subsequently sold, their rights to collect are restricted to that land, and only if the value of that land is insufficient to cover the cost of the debt may they utilize the original liens they had on the plots of land that were sold first.

מכרן לאחד היכי דמי

The Gemara clarifies: With regard to the first case in the baraita, where he sold all the land to one person, what are the circum-stances?

אילימא בבת אחת השתא לשלשה דאיכא למימר חד מינייהו קדים אמרת כולן נכנסו תחת הבעלים מכרן לאחד מיבעיא

If we say that he simultaneously sold all of the land to one person, that is difficult. Now that the baraita teaches that if he sold the land to three different people simultaneously, where it is possible to say that the sale to one of them preceded the other sales, yet you say the halakha is that all the buyers replace the land’s prior owner equally, and the possibility that one might have proceeded the other is disregarded, is it necessary to teach that the halakha is the same in a case where all the plots of land were simultaneously sold to one person?

אלא פשיטא בזה אחר זה

Rather, it is obvious that the baraita is referring to a case where the plots of land were sold one after the other.

ומאי שנא שלשה דכל חד וחד אמר ליה הנחתי לך מקום לגבות ממנו

The Gemara asks: But what is different about the latter clause of the baraita, where the plots of land were sold to three buyers, one after the other, and the creditors collect only from the last buyer? It is different in that each one of the first two buyers can say to any creditor who tries to seize the land they purchased: Do not collect my land, as I left a place for you, a plot of land in the debtor’s possession, from which to collect. In other words, when the first two buyers purchased their land a plot of land remained with the debtor, and therefore the creditor’s rights of collection are restricted to that land.

האי נמי אכל חד וחד לימא ליה הנחתי לך מקום לגבות ממנו

The Gemara continues its question: In this case as well, where all the plots of land were sold to a single buyer, with regard to each one of the first two plots of land that were sold, let the buyer say to any creditor who tries to collect: With my purchase of the first two plots of land, I left a place for you, a plot of land in the debtor’s possession, from which to collect. Therefore, even though the debtor subsequently sold the buyer all of the land, the creditor’s rights of collection are restricted to the last plot of land the debtor sold the buyer, irrespective of its quality. Why then does the baraita rule that in this case each creditor collects from the land that was originally liened to him?

הכא במאי עסקינן כגון שלקח עידית באחרונה וכן אמר רב ששת כגון שלקח עידית באחרונה

The Gemara explains: With what are we dealing here? This is a case where the individual buyer purchased the superior-quality land last. Accordingly, the buyer is satisfied with allowing each creditor to collect from the land that was previously liened to him, rather than having them each collect from the superior-quality land. And so says Rav Sheshet: It is a case where the individual buyer purchased the superior-quality land last.

אי הכי ליתו כולהו וליגבו מעידית

The Gemara asks: If that is so, let them all come and collect from the superior-quality land, as their rights to collect should be restricted to it, since it was purchased last.

משום דאמר להו אי שתקיתו ושקליתו כדינייכו שקליתו ואי לא מהדרנא שטרא דזיבורית למריה ושקליתו כולכו מזיבורית

The Gemara answers: Because he can say the following threat to them: If you are silent and do not insist on collecting from the superior-quality land, and take the land of a quality that is due to you according to your standard legal rights, as in a case where you collect directly from the debtor, i.e., the injured party will collect from the superior-quality land, the creditor from the intermediate-quality land, and the woman will collect her marriage contract from the inferior-quality land, then take that land and I will allow you to do so. But if not, and you insist on taking the superior-quality land that I purchased last, then I will return the bill of sale of the inferior-quality land to its prior owner, i.e., the debtor, and you will all be forced to collect from the inferior-quality land, because whenever the debtor has land in his possession you are able to collect the debts only from him.

אי הכי

The Gemara asks: If so, that this is the reason for the ruling in the baraita,

בנזקין נמי נימא הכי

then also with regard to damages, let the buyer say this to the injured party. He could threaten to return the bill of sale of the inferior-quality land to the debtor, which would force the injured party to collect directly from the debtor’s inferior-quality land. Since the buyer can do so, he can effectively force the injured party to collect from the purchased intermediate-quality land instead of fulfilling his right to collect from superior-quality land. Yet, the baraita teaches that in this case each party collects from the land that was originally liened to him, which means that damages are collected from the superior-quality land, indicating that this threat would not be effective.

אלא הכא במאי עסקינן ביתמי דלאו בני פרעון נינהו ושיעבודא דיליה עליה דידיה רמיא

Rather, with what are we dealing here? We are dealing with a case in which the debtor died and his inheritors are his orphans, who are not subject to an obligation to repay the debts of their father. When one dies, his monetary debts are not inherited by his children. And therefore, the lien of the creditor rests solely upon the buyer of the land. Any lien that was in effect with regard to the land he owned at the time he incurred the obligation remains, and his creditors can therefore collect what they are owed from that land, even if it is in the possession of a buyer.

הלכך ליכא למימר הכי

Therefore, one cannot say that the ruling in the baraita is based on the fact that the buyer can threaten to return the bill of sale to the debtor, or in this case, to his orphans. In this case, even if he were to return the bill of sale, the creditors would not be able to collect from the land now in the orphans’ possession, as they received it anew, not as an inheritance from their father. Therefore, the creditors can still collect from the plots of land that remain with the buyer.

אלא משום דאמר להו טעמא מאי אמור רבנן אין נפרעין מנכסין משועבדים במקום שיש בני חורין משום תקנתא דידי אנא בהא תקנתא לא ניחא לי

The Gemara suggests another explanation of the Tosefta: Rather, not all the creditors collect from the superior-quality land, which was the last plot of land purchased from the debtor, because the buyer can say to them: What is the reason that the Sages said one is not paid from liened property, i.e., property liened to a creditor that has been sold by the debtor, whenever there is unsold property still in the debtor’s possession? It is due to an ordinance created solely for my benefit, as I should not be expected to pay from the land I purchased when the debtor is still able to pay. If that ordinance were to be in effect in this case, all of their liens would be in effect with regard to the superior-quality land, as that was purchased last. In this case I do not find this ordinance satisfactory to me, and I would prefer for the lien of each creditor to remain in effect with regard to the land it had been on initially, and I will give each of you that land.

כדרבא דאמר רבא כל האומר אי אפשי בתקנת חכמים כגון זו שומעין לו

The Gemara notes: This fact that one is not required to avail himself of the financial benefit provided by a rabbinic ordinance is in accordance with the opinion of Rava. As Rava says: Anyone who says: I do not want to avail myself of the financial benefit provided by an ordinance of the Sages, such as this one, one listens to him.

מאי כגון זו

The Gemara asks: What does Rava mean by saying: An ordinance of the Sages, such as this one?

כדרב הונא דאמר רב הונא יכולה אשה שתאמר לבעלה איני ניזונית ואיני עושה

The Gemara answers: His statement is in accordance with the opinion of Rav Huna. As Rav Huna says: The Sages enacted that a husband must sustain his wife. They also enacted that he receives her earnings in exchange. Yet, a wife is legally entitled to say to her husband: I will not be sustained by you, and in turn I will not work i.e., you will not keep my earnings. Since his obligation to sustain her is only for her benefit, she may forgo her sustenance and retain her earnings for herself.

פשיטא מכר לוקח בינונית וזיבורית ושייר עידית לפניו ליתו כולהו וליגבו מעידית

The Gemara discusses a limitation on the buyer’s ability to refuse the benefit of the rabbinic ordinance: It is obvious that if the buyer sold, of the land he purchased from the debtor, the intermediate- and inferior-quality land to another buyer and retained in his possession only the superior-quality land, which he had purchased last, then all the creditors may come and collect from the superior-quality land.

דהא אחרונה היא ובינונית וזיבורית ליתנהו גביה דמצי למימר להו גבו מבינונית וזיבורית דלא ניחא לי בתקנתא דרבנן

For if the intermediate-quality and inferior quality land were in his possession, he would be able to say to the creditors: Collect from the intermediate-quality land and from the inferior-quality land, as it is not satisfactory to me to avail myself of the ordinance of the Sages. Now the he has sold the land of intermediate and inferior quality, however, he cannot unilaterally waive the ordinance without the consent of the second buyer. The second buyer benefits from the ordinance, since it compels the creditors to collect from the first buyer, and he will therefore certainly not agree to waive it.

אבל מכר עידית ושייר בינונית וזיבורית מאי

But if the first buyer sold only the superior-quality land that he had purchased last, and he retained in his possession the intermediate-quality and inferior-quality land, what is the halakha?

סבר אביי למימר אתו כולהו גבו מעידית

Abaye thought to say: All the creditors should come and collect from the superior-quality land. Since that land was the last plot of land in the debtor’s possession, the creditors’ right of collection was restricted to that land, irrespective of the fact that it was then subsequently sold twice.

אמר ליה רבא מה מכר ראשון לשני כל זכות שתבא לידו וכיון דאילו אתו גבי לוקח ראשון מצי אגבי להו מבינונית וזיבורית ואף על פי דכי זבני בינונית וזיבורית אכתי עידית בני חורין הואי ואין נפרעין מנכסים משועבדים כל זמן דאיכא בני חורין מצי אמר להו לא ניחא לי בהאי תקנה

Rava said to him: What has the first person sold to the second in any sale? Any rights that will come into his possession. And since, if the creditors were to come to the first buyer while he was still in possession of all three plots of land, he could have had them collect from the intermediate-quality and inferior-quality land; and this is the halakha even though when he initially purchased the intermediate-quality and inferior-quality land the superior-quality land was still unsold property in the debtor’s possession. As although there is the rabbinic ordinance that one does not exact payment from liened property when there is unsold property still in the debtor’s possession, the buyer could have said to them: I do not find this ordinance satisfactory to me.

לוקח שני נמי מצי אמר להו גבי בינונית וזיבורית דכי זבין לוקח שני אדעתא דכל זכותא דהוה ליה לראשון בגוה זבין

Rava continues: Therefore, since the first buyer had the right to say this, the second buyer can also say to them: Collect from the intermediate-quality and inferior-quality land in the first buyer’s possession. As, when the second buyer purchased the superior-quality land, he purchased it with the understanding that he also acquired all the rights that the first buyer had with regard to that land. Accordingly, he also acquires the right to insist that the creditors collect from the intermediate-quality and inferior-quality land.

אמר רבא ראובן שמכר כל שדותיו לשמעון והלך שמעון ומכר שדה אחת ללוי ובא בעל חוב דראובן רצה מזה גובה רצה מזה גובה ולא אמרן אלא דזבן בינונית

In a related ruling, Rava says: In the case of Reuven, who sold all of his fields to Shimon simultaneously and Shimon proceeded to sell one field of those purchased to Levi, and Reuven’s creditor came to collect the debt, if the creditor so desires, he collects from this one, i.e., Shimon, and if he so desires, he collects from that one, i.e., Levi. And we said this only in a case where Levi purchased intermediate-quality land from Shimon. A creditor’s right is to collect the debt from intermediate-quality land. Accordingly, in this case, Reuven’s creditor can collect his loan from the intermediate-quality land even after it has been transferred into Levi’s possession. Nevertheless, if he so desires, he may insist on collecting his loan from any inferior-quality land left in Shimon’s possession. This is because a creditor also has the right to demand payment from a borrower’s inferior-quality land instead of his intermediate-quality land, and therefore that land is also liened to the loan.

אבל זבן עידית וזיבורית לא דאמר ליה להכי דייקי וזבני עידית וזיבורית ארעא דלא חזיא לך

But if Levi purchased superior-quality and inferior-quality land from Shimon, no, the creditor can collect only from Shimon’s intermediate-quality land, as Levi could say to him: For this reason I was particular to purchase superior-quality and inferior-quality land, which is land that is not fit for you to collect from as a creditor.

ואפילו זבן בינונית נמי לא אמרן אלא דלא שייר בינונית דכוותיה דלא מצי אמר ליה הנחתי לך מקום לגבי שמעון אבל שייר בינונית דכוותיה גבי שמעון לא גבי מיניה דמצי אמר ליה הנחתי לך מקום לגבות ממנו

And if Levi purchased the intermediate-quality land from Shimon as well, we said that Reuven’s creditor can collect from him only in a case where he did not leave some similar intermediate-quality land in Shimon’s possession, as in that case, Levi is unable to say to the creditor: I left a place for you, i.e., a plot of land, in Shimon’s possession, from which to collect. But where Levi did leave some similar intermediate-quality land in Shimon’s possession, the creditor does not collect from Levi, as Levi is able to say to him: I left a place for you from which to collect.

אמר אביי ראובן שמכר שדה לשמעון באחריות ואתא בעל חוב דראובן וטרף משמעון דינא הוא דאזיל ראובן ומשתעי דינא בהדיה ולא מצי אמר ליה לאו בעל דברים דידי את דאמר ליה אי מפקת מיניה עלי הדר

In another related ruling, Abaye says: In the case of Reuven, who sold a field liened to his creditor to Shimon with a guarantee, meaning that Reuven agreed to reimburse Shimon should Reuven’s creditor collect the debt from that field, and Reuven’s creditor came and seized the field from Shimon, the halakha is that Reuven can go and litigate with his creditor and claim that he had already repaid the debt, and insist that the field be returned to Shimon. And the creditor is unable to say to Reuven: I am not legally answerable to you, as I am not taking away your land, since you sold it to Shimon. This is because Reuven could say to him: If you extract the field from him, Shimon will return to me and demand that I reimburse him for his loss. Consequently, I am involved in this matter.

ואיכא דאמרי אפילו שלא באחריות נמי דאמר ליה לא ניחא לי דתהוי לשמעון תרעומת עלי

And there are those who say: Even in a case where he sold the field without a guarantee, as well, in which case even if the creditor seizes Shimon’s land there are no legal consequences for Reuven, Reuven can litigate with the creditor, as he could say to him: It is not satisfactory for me for Shimon to have a grievance against me because he lost the field I sold him on account of the fact that I was unable to pay my debt. Consequently, I am involved in this matter.

ואמר אביי ראובן שמכר שדה לשמעון שלא באחריות

And in another related ruling, Abaye says: In the case of Reuven, who sold a field to Shimon without a guarantee,