Gittin 50

קבלן דבעל חוב דברי הכל משתעבד ערב דבעל חוב וקבלן דכתובה פליגי איכא למאן דאמר אף על גב דלית ליה נכסי ללוה משתעבד ואיכא למאן דאמר אי אית ליה משתעבד אי לית ליה לא משתעבד

Everyone also agrees that an unconditional guarantor for the repayment of a creditor becomes responsible for payment of the borrower’s debt. The Sages disagree with regard to the following cases: A guarantor for the repayment of a creditor and an unconditional guarantor for payment of a marriage contract. There is one Sage who says: Although the borrower does not have property of his own at the time of the loan, the guarantor becomes responsible for payment of the obligation. And there is one Sage who says: If the obligated party has property of his own, then the guarantor becomes responsible; if he does not have property of his own, he does not become responsible.

והילכתא בכולהו אף על גב דלית ליה משתעבד בר מערב דכתובה דאף על גב דאית ליה לא משתעבד

And the halakha is: In all of these cases, although the obligated party does not have property of his own at the time he assumes the obligation, the guarantor becomes responsible for payment of that obligation. This is so except in the case of a guarantor for payment of a marriage contract, as in that case, even if the husband has property of his own when he gives a marriage contract, the guarantor does not become responsible for payment of the obligation.

מאי טעמא מצוה הוא דעבד ולא מידי חסרה

What is the reason for this? The intention of the guarantor is performing a mitzva of facilitating a marriage by encouraging the woman to consent to the marriage as a result of his involvement, but he does not truly intend to obligate himself. And furthermore, the woman does not lose anything in exchange for which the guarantor would accept responsibility, as the husband does not borrow money from the woman. Therefore, the Sages instituted that the guarantor does not become responsible for payment of the marriage contract from his own property.

אמר רבינא תא שמע מעיקרא דתקנתין יותר ממה שהאיש רוצה לישא אשה רוצה לינשא ואי סלקא דעתך מיתמי האי משום דיתמי הוא תיובתא דמר זוטרא תיובתא

Ravina said: Come and hear a proof concerning the question of whether the mishna’s ruling that payment of a woman’s marriage contract is collected from inferior-quality land applies only when the woman collects from orphans or if it applies even when she collects from her husband. The proof is from the beginning of our ordinance: Why did the Sages say that a woman’s marriage contract is collected from inferior-quality land? It is because more than a man wants to marry a woman, a woman wants to become married to a man. And if it enters your mind that this halakha applies only when the woman collects from orphans, then the reason given for this halakha should be that it is because they are orphans, not because a woman wants to become married. This indicates that the mishna’s ruling applies even when she collects her marriage contract during her husband’s lifetime, contrary to the opinion of Mar Zutra. The Gemara affirms: The refutation of the opinion of Mar Zutra is a conclusive refutation.

אמר מר זוטרא בריה דרב נחמן משמיה דרב נחמן שטר חוב היוצא על היתומין אף על פי שכתוב בו שבח אינו גובה אלא מן הזיבורית

§ Apropos a statement attributed to Mar Zutra, son of Rav Naḥman, the Gemara cites another halakha in his name on a similar topic: Mar Zutra, son of Rav Naḥman, said in the name of Rav Naḥman: If a promissory note is presented to orphans for repayment of a loan taken by their father, then although an enhancement of the creditor’s ability to collect, enabling the collection of even superior-value land, is written in it, the creditor can collect only from inferior-quality land.

אמר אביי תדע דבעל חוב דיניה בבינונית ומיתמי בזיבורית

Abaye said: Know that this is the case, as the halakha governing a creditor is that he collects from intermediate-quality land, but from orphans he collects only from inferior-quality land. If one cannot collect even from intermediate-quality land of orphans, all the more so one cannot collect from their superior-quality land.

אמר ליה רבא הכי השתא בעל חוב דיניה מדאורייתא בזיבורית כדעולא דאמר עולא דבר תורה בעל חוב בזיבורית שנאמר בחוץ תעמד והאיש וגו׳ מה דרכו של איש להוציא פחות שבכלים ומה טעם אמרו בעל חוב בבינונית כדי שלא תנעול דלת בפני לוין וגבי יתמי אוקמוה רבנן אדאורייתא

Rava said to him: How can these two cases be compared? By Torah law, the halakha governing a creditor is that he collects from inferior-quality land, in accordance with 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 to whom you have lent shall bring forth the pledge out to you” (Deuteronomy 24:11). What would a man ordinarily take out as a pledge? The least valuable of his vessels. This demonstrates that the creditor is entitled only to the least valuable of the debtor’s vessels. Similarly, when he collects from land, he collects only from inferior-quality land. And for what reason did the Sages say that a creditor collects from intermediate-quality land? So as not to lock the door before potential borrowers, i.e., so that people do not refrain from extending loans. And with regard to orphans, the Sages left the halakha as it is stated in the Torah.

אלא הכא כיון דדיניה מדאורייתא בעידית אפילו מיתמי נמי בעידית

But here, a stipulation enhancing the creditor’s ability to collect was included in the promissory note. Therefore, since by Torah law the halakha governing this creditor is that he collects from superior-quality land as stipulated in the loan agreement, then he should also collect from superior-quality land even when collecting the debt from orphans.

ולרבא והתני אברם חוזאה אין נפרעין מנכסי יתומין אלא מן הזיבורית ואפילו הן ניזקין והא ניזקין דינן מדאורייתא בעידית

The Gemara asks: And according to this explanation of Rava, there is a difficulty: Didn’t the Sage Avram Ḥoza’a teach a baraita that states: A father’s debt can be collected from the property of the orphans only from inferior-quality land? The Gemara infers: And this ruling applies even if the property is collected for payment to injured parties. But isn’t it true that by Torah law the halakha governing injured parties is that they collect from superior-quality land? This indicates that even when by Torah law collection should be from superior-quality land, the Sages instituted that one may collect from orphans only inferior-quality land.

הכא במאי עסקינן כגון שהיתה עידית דניזק כזיבורית דמזיק

The Gemara answers: With what case are we dealing here in the baraita taught by Avram Ḥoza’a? We are dealing with a case where superior-quality land of the injured party is equal in quality to inferior-quality land of the one who caused the damage, i.e., the orphans, and the one who caused the damage also has land of superior quality.

ורבי ישמעאל היא דאמר מדאורייתא בדניזק שיימינן ומפני תיקון העולם תקינו רבנן בדמזיק וגבי יתמי אוקמוה רבנן אדאורייתא

And the baraita is taught in accordance with the opinion of Rabbi Yishmael, who says: By Torah law we appraise the property of the injured party, and therefore the one who caused the damage can pay with his inferior-quality fields that are equal in quality to the superior-quality land owned by the injured party. And for the betterment of the world, the Sages instituted that we appraise the property of the one who caused the damage, and he pays with his superior-quality land. But with regard to orphans, the Sages left the halakha as it is stated in the Torah; they pay from their inferior-quality land that is equal in quality to superior-quality land belonging to the injured party. By contrast, a creditor who holds a promissory note stipulating that the debt can be collected from superior-quality land can collect superior-quality land even from orphans, as stipulated in the loan agreement.

איני והתני רבי אליעזר ניותאה אין נפרעין מנכסי יתומים אלא מן הזיבורית ואפילו הן עידית מאי אפילו הן עידית לאו אף על גב דכתיב עידית בשטרא

The Gemara asks: Is that so? But didn’t Rabbi Eliezer Nayota’a teach a baraita that states: A father’s debt can be collected from the property of the orphans only from inferior-quality land, even if it is superior-quality land? The Gemara asks: What is the meaning of: Even if it is superior-quality land? Is it not the following: Although superior-quality land is written in the promissory note, the debt can be collected from the orphans only from inferior-quality land.

לא מאי עידית שפאי עידית כדרבא

The Gemara rejects this suggestion: No, what is the meaning of superior-quality land? Orphans can repay the debt even from strips of superior-quality land that due to their location cannot be cultivated or guarded and that consequently have a lower market value than inferior-quality land, as in the statement of Rava.

דאמר רבא הזיק זיבורית גובה מן העידית שפאי עידית גובה מן הבינונית וגבי יתמי אוקמוה רבנן אדאורייתא

As Rava says: If one damaged inferior-quality land, the injured party collects from superior-quality land. The one who caused damage is penalized and made to pay from land of much higher quality than that which he damaged. If he damaged strips of superior-quality land that cannot be cultivated, the injured party collects from intermediate-quality land, as the land that was damaged is inferior in value even to inferior-quality land, and therefore it suffices if compensation is paid from intermediate-quality land. And why did Rabbi Eliezer Nayota’a teach that orphans may pay their father’s debt from land of the lowest quality? With regard to orphans, the Sages left the halakha as it is written in the Torah, that a creditor collects from inferior-quality land.

אין נפרעין מנכסי יתומין אלא מן הזיבורית בעי רב אחדבוי בר אמי יתומים שאמרו קטנים או אפילו גדולים תקנתא היא דעבוד רבנן גבי יתמי לקטנים עבוד רבנן לגדולים לא עבוד רבנן

§ The mishna teaches: If one who owed money died and his children inherited his property, the father’s debt can be collected from the property of the orphans only from inferior-quality land. Rav Aḥadevoi bar Ami raised a dilemma with regard to the meaning of this statement: Do the orphans of which they spoke refer specifically to minors or even to adults? The Gemara explains the two sides of the dilemma: Is this an ordinance that the Sages instituted for the benefit of the orphans, in which case it may be argued that the Sages instituted it for minors but they did not institute it for adults?

או דלמא משום דלא מסיק אדעתא דמלוה דמית לוה ונפלי נכסי קמי יתמי דהוה ליה נועל דלת הלכך אפילו גדולים נמי

Or, perhaps the reason is different. The reason that a creditor collects from intermediate-quality land is so that the door not be locked before potential borrowers. Here, this is not a concern, since it does not enter the mind of the creditor that he should not lend money as perhaps the borrower will die and his property will fall to the orphans. As only if he were to consider this possibility, would it be that this would lock the door before potential borrowers. Consequently, the ordinance that a creditor collects from intermediate-quality land was instituted only in the standard case, where the creditor collects from the debtor himself, but not where he collects from the heirs. Therefore, the ordinance that a debt can be collected from the property of orphans only from inferior-quality land should apply also to adult orphans.

תא שמע דתני אביי קשישא יתומין שאמרו גדולים ואין צריך לומר קטנים

The Gemara answers: Come and hear what Abaye the Elder taught: With regard to the orphans of which the Sages spoke, the phrase is referring to adults, and needless to say it is referring also to minors.

ודלמא הני מילי לענין שבועה דגדול במילי דאבוה כקטן דמי אבל לענין זיבורית לא

The Gemara rejects this proof: But perhaps this statement applies only to the matter of an oath. One who collects a debt from property left by the debtor to his heirs always takes an oath, even if he produces a promissory note. This halakha applies even if the heirs are adults. This is because even an adult son is considered like a minor with regard to his father’s financial matters, since he does not know the details of his father’s business dealings and it is possible that his father had actually repaid the debt before dying. But with regard to collecting the debt from inferior-quality land, no, this halakha applies only to minors.

והלכתא

The Gemara concludes: And the halakha is:

יתומין שאמרו גדולים ואין צריך לומר קטנים בין לשבועה בין לזיבורית

With regard to the orphans of which the Sages spoke, the phrase is referring to adults, and needless to say it is referring also to minors, whether with regard to the halakha that a debt can be collected from the property of orphans only with an oath, or whether with regard to the halakha that a debt can be collected from the property of orphans only from inferior-quality land.

אין נפרעין מנכסים משועבדים במקום שיש בני חורין בעי רב אחדבוי בר אמי במתנה היאך

§ The mishna teaches: Payment of a debt or other obligation is not collected from liened property that has been sold to a third party when the debtor still has unsold property, even when this unsold property is inferior-quality land. Rav Aḥadevoi bar Ami raised a dilemma: What is the halakha with regard to liened property that the debtor gave to another person as a gift? Is it the halakha that the debt is not collected from liened property that has been given as a gift to a third party when the debtor still has property?

תקנתא הוא דעבוד רבנן משום פסידא דלקוחות אבל מתנה דליכא פסידא דלקוחות לא או דלמא מתנה נמי אי לאו דאית ליה הנאה מיניה לא יהיב ליה מתנה והלכך כי פסידא דלקוחות דמי

The Gemara presents the two sides to this dilemma: Is the halakha that payment is not collected from liened property that has been sold an ordinance that the Sages instituted due to the loss of the buyers, who would lose the money that they had paid for the property? But in the case of a gift, where there is no issue of loss to the buyers, i.e., the recipients, as the recipients paid nothing for the property, the halakha does not apply. Or perhaps the halakha applies to a gift as well, as, were it not for some benefit that the donor derives from the recipient, he would not have given him the gift. And therefore this loss to the recipient is considered to be like the loss to buyers and payment of the debt is not collected from the recipient of the gift when the debtor still has property in his possession.

אמר ליה מר קשישא בריה דרב חסדא לרב אשי תא שמע שכיב מרע שאמר תנו מאתים זוז לפלוני ושלש מאות לפלוני וארבע מאות לפלוני אין אומרים כל הקודם בשטר זכה לפיכך יצא עליו שטר חוב גובה מכולן

Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: Come and hear what was taught in a baraita (Tosefta, Bava Batra 9:6): If a person on his deathbed said: Give two hundred dinars to so-and-so, and three hundred to so-and-so, and four hundred to so-and-so, in this case one does not say that whoever appears first in the deed acquires his money first. Therefore, if a promissory note emerged against the one who gave the gifts, and it becomes clear that the money given was pledged to a creditor, then the creditor collects from all of them.

אבל אם אמר תנו מאתים זוז לפלוני ואחריו לפלוני ואחריו לפלוני אומרים כל הקודם בשטר זכה לפיכך יצא עליו שטר חוב גובה מן האחרון אין לו גובה משלפניו אין לו גובה משלפני פניו

But if the person on his deathbed said: Give two hundred dinars to so-and-so, and after him to so-and-so, and after him to so-and-so, then one says: Anyone who appears first in the deed acquires his money first. Therefore, if a promissory note emerged against him, the creditor first collects from the last one of the recipients. If he does not have enough to repay the debt, he collects from the previous person. If he does not have enough to repay the debt, he collects from the person listed before the previous person.

ואף על גב דקמא בינונית ובתרא זיבורית מזיבורית גבי מבינונית לא גבי שמע מינה במתנה נמי עבוד רבנן תקנתא

The Gemara infers: And this is the halakha even if the property given to the first recipient is intermediate-quality land and the property given to the last recipient is inferior-quality land. Although a creditor is entitled to collect his debt from intermediate-quality land, the creditor in this case collects from inferior-quality land, as he collects from the last person to receive his gift, and he does not collect from the intermediate-quality land given to the first recipient. Conclude from the baraita that the Sages also instituted this ordinance in the case of a gift, and that payment of a debt is not collected from liened property that has been given as a gift to a third party when the debtor still has property that has not been sold or given away as a gift. The reason is that the second gift is considered to be unsold property in relation to the first gift because, when the first gift was given, the second gift was still in the donor’s possession.

הכא במאי עסקינן בבעל חוב והא תנו קאמר תנו בחובי

The Gemara rejects this proof: With what are we dealing here? We are not dealing here with a person on his deathbed who is distributing monetary gifts, but rather with a debtor who is dividing his money between his various creditors. The Gemara raises an objection: But didn’t the person on his deathbed say: Give the money to so-and-so, a formulation that indicates that he is granting a gift? The Gemara answers that what this means is: Give this money as payment for my debt.

וליחזי שטרא דמאן קדים דליכא שטרא והא כל הקודם בשטר קאמר בשטר פקדתא

The Gemara asks: If so, why should the recovery of the debts depend upon the wording of the debtor’s instructions? But let us see whose promissory note was written first, as it is he who collects first. The Gemara answers: We are dealing with a case where there is no promissory note, e.g., where the creditors lost their deeds. The Gemara raises an objection: But didn’t it say in the baraita: Whoever appears first in the deed? This indicates that there is in fact a deed. The Gemara answers: The reference here is not to the promissory notes but to the testamentary deed drawn up by the person on his deathbed.

ואיבעית אימא אפילו מתנה נמי ולא קשיא מאי גובה מן האחרון אין נפסד אלא אחרון

And if you wish, say: The baraita is referring also to a case of a gift, and even if the mishna’s ordinance does not apply to liened property that had been given away as a gift, the halakha that the creditor collects from the last recipient is not difficult, as what is the meaning of the words: He collects from the last recipient? This means that it is only the last recipient who really loses, as the creditor can collect from intermediate-quality land wherever it is, even if it is in the possession of the first recipient. But after the creditor collects what is due him, the recipients of the gifts distribute the remaining property, in accordance with the order set down in the donor’s testament. Therefore, it will always be the last recipient who loses and no one else.

ואיבעית אימא דשוו כולהו להדדי

And if you wish, say: The baraita is referring to a case where all of the properties are of equal quality. There is no reason to collect specifically from the first recipient because he has intermediate-quality land as opposed to the last recipient who does not. In such a case, the debt is collected first from the last recipient. Therefore, there is no proof from here that the mishna’s ordinance applies even to liened property that had been given away as a gift.

אין מוציאין לאכילת פירות מאי טעמא אמר עולא אמר ריש לקיש לפי שאין כתובין

§ The mishna teaches: The court does not appropriate liened property that has been sold to a third party for the consumption of produce. If one appropriated a field and sold it, and the buyer worked the land, improved it, and grew produce on it, and then the owner came and took back his field together with the produce, the buyer cannot collect the value of the produce from property that the robber sold to another person. The Gemara asks: What is the reason for this? Ulla says that Reish Lakish says: This is because the produce is not written in the deed of sale. The obligation of a seller to reimburse the buyer if the field he sells him is repossessed by a prior owner or creditor is dependent upon the obligation recorded in the deed of sale. His obligation of reimbursement with regard to the produce is therefore treated like a loan by oral agreement, which is not a matter of public knowledge, and those who subsequently purchased land from the robber are not obligated to pay for debt incurred in a loan by oral agreement, as they had no way to know about it at the time of their purchase.

אמר ליה רבי אבא לעולא והא מזון האשה והבנות דכמאן דכתיבי דמו וקתני אין מוציאין

Rabbi Abba said to Ulla: But isn’t the sustenance of a man’s wife and daughters considered as if it were written, as even if it is not explicitly recorded in the marriage contract it is one of the fixed stipulations of a marriage contract that are imposed by the court? It is known that a man is obligated to provide for the sustenance of his wife and daughters, and yet the mishna teaches: Payment for the sustenance of a man’s wife and daughters cannot be collected from the husband’s liened property.

אמר ליה התם מעיקרא הכי אתקון כתובין הן אצל בני חורין ואין כתובין הן אצל משועבדין

Ulla said to him: There, with regard to sustenance of a man’s wife and daughters, the Sages instituted it like this from the outset: It is considered as if it were written with regard to unsold property that is still in the man’s possession, so that sustenance can be collected from such property, but it is not considered as if it were written with regard to liened property that has been sold to another party.

וכן אמר רבי אסי אמר רבי יוחנן לפי שאין כתובין אמר ליה רבי זירא לרב אסי והא מזון האשה והבנות דכמאן דכתיבי דמו וקתני אין מוציאין אמר ליה מעיקרא הכי אתקון כתובין הן אצל בני חורין ואין כתובין הן אצל משועבדין

And similarly, Rabbi Asi says that Rabbi Yoḥanan says with regard to the mishna: Why can’t the payment for the consumption of produce be collected from property that the robber sold to another person? It is because the produce is not written in the purchaser’s deed of sale. Rabbi Zeira said to Rav Asi: But isn’t the sustenance of a man’s wife and daughters considered as if it were written in the marriage contract, and yet the mishna teaches: Payment for the sustenance of a man’s wife and daughters cannot be collected from the husband’s liened property? Rav Asi said to him: The Sages instituted it like this from the outset: Sustenance is considered as if it were written with regard to unsold property that is still in the man’s possession, so that sustenance can be collected from such property, but it is not considered as if it were written with regard to liened property that has been sold to another party. This concludes the discussion of one reason for the halakha in the mishna.

רבי חנינא אמר לפי שאין קצובין

Rabbi Ḥanina says that it is for a different reason that payment for the consumption of produce cannot be recovered from property that the robber sold to another person: It is because the produce is not of a fixed amount, i.e., it could not be known at the outset how much produce would grow on the field or what its value would be. The Sages instituted that any obligation that is not of a fixed amount cannot be collected from property sold to another person, because the purchaser of the liened property cannot assess the risk he is assuming of having another person come to collect compensation from that property for a loss he has suffered.

איבעיא להו לרבי חנינא קצובין וכתובין בעי

A dilemma was raised before the Sages: According to the opinion of Rabbi Ḥanina, in order to collect from liened property, is it necessary that the obligation be both of a fixed amount and also written? If so, this would indicate that Rabbi Ḥanina adds another requirement in addition to that of Rabbi Yoḥanan.