בבא בתרא קנז

בבא בתרא קנז

אוֹמֵר: בַּחוֹל אָמְרוּ, וְקַל וָחוֹמֶר לַשַּׁבָּת. כַּיּוֹצֵא בּוֹ – זָכִין לַגָּדוֹל, וְאֵין זָכִין לַקָּטָן; דִּבְרֵי רַבִּי אֱלִיעֶזֶר. רַבִּי יְהוֹשֻׁעַ אוֹמֵר: בְּגָדוֹל אָמְרוּ, קַל וָחוֹמֶר לַקָּטָן.

says: With regard to weekdays the Sages stated that the verbal instruction of person on his deathbed is valid, even though it is permitted to write. And one may infer a fortiori that the same applies with regard to Shabbat, when writing is prohibited. Similarly, one can acquire property on behalf of an adult, as he is able to effect acquisition himself, but one cannot acquire property on behalf of a minor; this is the statement of Rabbi Eliezer. Rabbi Yehoshua says: The Sages stated this halakha with regard to an adult, even though he can effect acquisition himself. One may infer a fortiori that this also applies with regard to a minor, who cannot effect acquisition himself.

רַבִּי יְהוּדָה אוֹמֵר, רַבִּי אֱלִיעֶזֶר אוֹמֵר: בַּשַּׁבָּת – דְּבָרָיו קַיָּימִין, מִפְּנֵי שֶׁאֵינוֹ יָכוֹל לִכְתּוֹב; אֲבָל לֹא בַּחוֹל. רַבִּי יְהוֹשֻׁעַ אוֹמֵר: בַּשַּׁבָּת אָמְרוּ, קַל וָחוֹמֶר בַּחוֹל. כַּיּוֹצֵא בּוֹ – זָכִין לַקָּטָן וְאֵין זָכִין לַגָּדוֹל, דִּבְרֵי רַבִּי אֱלִיעֶזֶר. רַבִּי יְהוֹשֻׁעַ אוֹמֵר: לַקָּטָן אָמְרוּ, קַל וָחוֹמֶר לַגָּדוֹל.

Rabbi Yehuda says that Rabbi Eliezer says: On Shabbat, the verbal statement of a person on his deathbed stands due to the fact that he cannot write. But a verbal instruction does not stand on a weekday. Rabbi Yehoshua says: With regard to Shabbat the Sages stated that his verbal instruction stands, even though writing is prohibited. One may infer a fortiori that the same applies with regard to a weekday, when writing is permitted. Similarly, one can acquire property on behalf of a minor, but one cannot acquire property on behalf of an adult, since he can effect the acquisition himself; this is the statement of Rabbi Eliezer. Rabbi Yehoshua says: The Sages stated this halakha with regard to a minor, and one may infer a fortiori that this also applies with regard to an adult.

מַתְנִי׳ נָפַל הַבַּיִת עָלָיו וְעַל אָבִיו, אוֹ עָלָיו וְעַל מוֹרִישָׁיו, וְהָיְתָה עָלָיו כְּתוּבַּת אִשָּׁה וּבַעַל חוֹב, יוֹרְשֵׁי הָאָב אוֹמְרִים: הַבֵּן מֵת רִאשׁוֹן, וְאַחַר כָּךְ מֵת הָאָב; וּבַעֲלֵי הַחוֹב אוֹמְרִים: הָאָב מֵת רִאשׁוֹן, וְאַחַר כָּךְ מֵת הַבֵּן.

MISHNA: A house collapsed on a son and upon his father, or upon a certain person and upon those from whom he stands to inherit, and it is unknown who died first. If the son bore the responsibility to pay the marriage contract of his wife and to pay a creditor, and the son had no money with which to pay them except that which he might inherit from his father, and the father’s heirs say: The son died first and afterward the father died, and therefore the son did not inherit property from his father, and the creditors say: The father died first and afterward the son died, resulting in the son’s inheriting his father’s property, enabling the creditors to collect payment from the property even after the son’s death, there is a dispute with regard to how to rule.

בֵּית שַׁמַּאי אוֹמְרִים: יַחְלוֹקוּ, וּבֵית הִלֵּל אוֹמְרִים: נְכָסִים בְּחֶזְקָתָן.

Since it cannot be determined who died first, Beit Shammai say: They divide the property between them so that the father’s heirs receive half of his property and the son’s creditors receive the other half. And Beit Hillel say: The property retains its previous ownership status. Since the last known owner of the property was the father, the property is given to the father’s heirs.

גְּמָ׳ תְּנַן הָתָם: הַמַּלְוֶה אֶת חֲבֵירוֹ בִּשְׁטָר – גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים. עַל יְדֵי עֵדִים – גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין.

GEMARA: We learned in a mishna elsewhere (175a): One who lends money to another with a promissory note can collect the debt even from liened property that has been sold. If one lends money only with witnesses, he can collect the debt only from unsold property.

בָּעֵי שְׁמוּאֵל: ״דְּאִיקְנֵי״, וְקָנָה; מַהוּ? אַלִּיבָּא דְּרַבִּי מֵאִיר, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם – לָא תִּיבְּעֵי לָךְ, דְּוַדַּאי קָנָה. אֶלָּא כִּי תִּיבְּעֵי לָךְ – אַלִּיבָּא דְּרַבָּנַן, דְּאָמְרִי: אֵין אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם.

Shmuel raises a dilemma: If the borrower wrote in the promissory note: The property that I will acquire in the future shall be liened to this debt, and he subsequently acquired property, what is the halakha? Is the property liened or not? The Gemara clarifies the dilemma: According to the opinion of Rabbi Meir, who says: A person can transfer ownership of an entity that has not yet come into the world, you should not raise the dilemma, as the lender certainly acquires, i.e., places a lien, on the property. Rather, when should you raise the dilemma? Raise it according to the opinion of the Rabbis, who say: A person cannot transfer ownership of an entity that has not yet come into the world.

אָמַר רַב יוֹסֵף: תָּא שְׁמַע, וַחֲכָמִים אוֹמְרִים: זֶה הָיָה פִּיקֵּחַ שֶׁמָּכַר לוֹ אֶת הַקַּרְקַע, מִפְּנֵי שֶׁהוּא יָכוֹל לְמַשְׁכְּנוֹ עָלָיו!

Rav Yosef said: Come and hear proof from a mishna (Ketubot 110a): If one produces a promissory note against another, and the borrower produced a bill of sale dated after the promissory note that states that the lender sold him a field of his, Admon says that the borrower can say: Were I really indebted to you, you should have collected the loan when you sold me the field. And the Rabbis say: This does not prove anything. It is possible that this lender was perspicacious, as he sold the borrower the land for a good reason, because now he can take the field as collateral from him in lieu of the outstanding loan. This mishna indicates that even property acquired by the borrower after the promissory note is written is liened.

אֲמַר לֵיהּ רָבָא: מִינֵּיהּ קָאָמַר?! מִינֵּיהּ – אֲפִילּוּ מִגְּלִימָא דְּעַל כַּתְפֵּיהּ! כִּי קָא מִיבַּעְיָא לַן, ״דְּאִיקְנֵי״ – קָנָה וּמָכַר, ״דְּאִיקְנֵי״ – קָנָה וְהוֹרִישׁ, מַאי?

Rava said to Rav Yosef: Do you speak of a case where the debt is collected from the debtor? With regard to collecting the debt from him, the debt is collected from any property currently in his possession, even from the cloak that is upon his shoulders. When the dilemma was raised to us, it was with regard to a case where the borrower wrote: The property that I will acquire shall be liened, and he subsequently acquired property and sold it to others. The dilemma also pertains to a case where the borrower wrote: The property that I will acquire shall be liened, and he subsequently acquired property and bequeathed it to his heirs. In these cases, what is the halakha? Can the lender repossess the property from the buyer or heir?

אָמַר רַב חָנָא, תָּא שְׁמַע: נָפַל הַבַּיִת עָלָיו וְעַל אָבִיו, עָלָיו וְעַל מוֹרִישָׁיו; וְהָיְתָה עָלָיו כְּתוּבַּת אִשָּׁה וּבַעַל חוֹב; יוֹרְשֵׁי הָאָב אוֹמְרִים: הַבֵּן מֵת רִאשׁוֹן וְאַחַר כָּךְ מֵת הָאָב, וּבַעֲלֵי חוֹבוֹת אוֹמְרִים: הָאָב מֵת רִאשׁוֹן כּוּ׳.

Rav Ḥana said: Come and hear a proof from the mishna: In a case where the house collapsed on a son and upon his father, or upon a certain person and upon those from whom he stands to inherit, and it is unknown who died first, the halakha depends on the circumstances. If the son bore the responsibility to pay the marriage contract of his wife and to pay a creditor, and the son had no money with which to pay them except that which he might inherit from his father, and the father’s heirs say: The son died first and afterward the father died, and therefore the son did not inherit property from his father, and the creditors say: The father died first and afterward the son died, there is a dispute with regard to how to rule. In this case, the creditors claim that the son inherited his father’s property, and therefore they have a lien upon the property.

וְאִי סָלְקָא דַּעְתָּךְ ״דְּאִיקְנֵי״ – קָנָה וּמָכַר, ״דְּאִיקְנֵי״– קָנָה וְהוֹרִישׁ, לָא מִשְׁתַּעְבֵּד; נְהִי נָמֵי דְּאָב מָיֵת בְּרֵישָׁא, ״דְּאִיקְנֵי״ הוּא!

The Gemara explains: And if it enters your mind to say that when the borrower writes: The property that I will acquire shall be liened, and he acquires property and sells it to others, it is not liened, and that when he writes: The property that I will acquire shall be liened, and he acquires property and bequeaths it to his heirs, it is not liened, then the mishna is difficult. Although the father indeed died first, this case is comparable to one where the borrower writes: The property that I will acquire shall be liened, as the son acquired the property after receiving the loan. This indicates that a lien can be placed upon property that one will acquire in the future.

אֲמַר לְהוּ רַב נַחְמָן, זְעֵירָא חַבְרִין תַּרְגְּמַהּ: מִצְוָה עַל הַיְּתוֹמִים לִפְרוֹעַ חוֹבַת אֲבִיהֶן. מַתְקֵיף לַהּ רַב אָשֵׁי: מִלְוֶה עַל פֶּה הוּא, וְרַב וּשְׁמוּאֵל דְּאָמְרִי תַּרְוַיְיהוּ: מִלְוֶה עַל פֶּה – אֵינוֹ גּוֹבֶה לֹא מִן הַיּוֹרְשִׁין וְלֹא מִן הַלָּקוֹחוֹת!

Rav Naḥman said to the Sages: Rabbi Zeira, our colleague, interpreted the mishna as follows: In this case, the creditors do not claim the property because it is liened. Rather, they claim it because it is a mitzva incumbent upon the orphans to repay their father’s debt. Rav Ashi objects to this: If the promissory note does not place a lien on the property, this is considered a loan by oral agreement, and Rav and Shmuel both say: A loan by oral agreement cannot be collected, neither from the heirs nor from the buyers.

אֶלָּא הָא מַנִּי – רַבִּי מֵאִיר הִיא, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם.

Rather, in accordance with whose opinion is this mishna? This mishna is in accordance with the opinion of Rabbi Meir, who says: A person can transfer ownership of an entity that has not yet come into the world. Similarly, Rabbi Meir maintains that one can place a lien on property that the borrower will subsequently acquire.

אָמַר רַב יַעֲקֹב מִנְּהַר פְּקוֹד מִשְּׁמֵיהּ דְּרָבִינָא, תָּא שְׁמַע: שִׁטְרֵי חוֹב הַמּוּקְדָּמִין – פְּסוּלִין, וְהַמְאוּחָרִין – כְּשֵׁרִין.

Rav Yaakov from Nehar Pekod says in the name of Ravina: Come and hear proof from a mishna (Shevi’it 10:5): Promissory notes that are antedated, i.e., that are dated prior to the date on which the loan actually was given, are invalid. This is because the promissory note places a lien on the borrower’s property. By dating the document earlier than the loan itself, the lender appears to have a lien on property that the borrower sold prior to taking out the loan, enabling the lender to fraudulently repossess it from the buyer. But promissory notes that are postdated are valid, as this does not enable the lender to defraud a buyer.

וְאִי סָלְקָא דַּעְתָּךְ ״דְּאִיקְנֵי״ – קָנָה וּמָכַר, ״דְּאִיקְנֵי״ – קָנָה וְהוֹרִישׁ, לֹא מִשְׁתַּעְבֵּד; מְאוּחָרִין אַמַּאי כְּשֵׁרִין? ״דְּאִיקְנֵי״ הוּא!

The Gemara explains: And if it enters your mind to say that property that the borrower acquires after receiving the loan is not liened even when he writes: The property that I will acquire shall be liened, and he acquires property and sells it to others, or when he writes: The property that I will acquire shall be liened, and he acquires property and bequeaths it to his heirs, why, then, are postdated promissory notes valid? They should be invalid, as in some instances they enable the creditor to fraudulently repossess property that is not liened, e.g., if the borrower acquires property after receiving the loan but before the date on the promissory note, and he sells it after that date. This case is comparable to one where the borrower writes: The property that I will acquire shall be liened.

הָא מַנִּי – רַבִּי מֵאִיר הִיא, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם.

The Gemara answers: In accordance with whose opinion is this mishna? This mishna is in accordance with the opinion of Rabbi Meir, who says: A person can transfer ownership of an entity that has not yet come into the world.

אָמַר רַב מְשַׁרְשְׁיָא מִשְּׁמֵיהּ דְּרָבָא, תָּא שְׁמַע: לְשֶׁבַח קַרְקָעוֹת כֵּיצַד? הֲרֵי שֶׁמָּכַר שָׂדֶה לַחֲבֵירוֹ, וְהִשְׁבִּיחָהּ, וּבָא בַּעַל חוֹב וּטְרָפָהּ, כְּשֶׁהוּא גּוֹבֶה – גּוֹבֶה אֶת הַקֶּרֶן מִנְּכָסִין מְשׁוּעְבָּדִין, וְאֶת הַשֶּׁבַח מִנְּכָסִין בְּנֵי חוֹרִין.

Rav Mesharshiyya says in the name of Rava: Come and hear proof from a baraita: With regard to collecting a debt in a case of enhancement of land, how does it happen that the debt cannot be collected from liened property that has been sold? This question arises in a case where a debtor sold a field to another and the buyer enhanced it, and a creditor came and repossessed it from the buyer. When the buyer collects the value of the land from the seller, he collects the principal even from liened property that was sold to others, but he collects the value of the enhancement only from unsold property.

וְאִי סָלְקָא דַּעְתָּךְ ״דְּאִיקְנֵי״ – קָנָה וּמָכַר, ״דְּאִיקְנֵי״ – קָנָה וְהוֹרִישׁ, לֹא מִשְׁתַּעְבֵּד; בַּעַל חוֹב אַמַּאי גּוֹבֶה שְׁבָחָא?

And if it enters your mind to say that property that the borrower acquires after receiving the loan is not liened even when he writes: The property that I will acquire shall be liened, and he acquires property and sells it to others, or when he writes: The property that I will acquire shall be liened, and he acquires property and bequeaths it to his heirs, why does the creditor collect his debt by repossessing the enhancement from the buyer? Since the enhancement was not extant at the time of the loan, it is not liened.

הָא מַנִּי – רַבִּי מֵאִיר הִיא, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם.

The Gemara answers: In accordance with whose opinion is this mishna? This mishna is in accordance with the opinion of Rabbi Meir, who says: A person can transfer ownership of an entity that has not yet come into the world. The dilemma of Shmuel is raised according to the opinion of the Rabbis.

אִם תִּמְצָא לוֹמַר: ״דְּאִיקְנֵי״ – קָנָה וּמָכַר, ״דְּאִיקְנֵי״ – קָנָה וְהוֹרִישׁ, לֹא מִשְׁתַּעְבֵּד; הָא לֹא מִשְׁתַּעְבֵּד. אִם תִּמְצָא לוֹמַר: מִשְׁתַּעְבֵּד; לָוָה וְלָוָה, וְחָזַר וְקָנָה, מַהוּ? לְקַמָּא מִשְׁתַּעְבַּד, אוֹ לְבָתְרָא מִשְׁתַּעְבַּד?

The Gemara comments: If you say that when the borrower writes: The property that I will acquire shall be liened, and he acquires property and sells it to others, it is not liened, and that when he writes: The property that I will acquire shall be liened, and he acquires property and bequeaths it to his heirs, it is not liened, then it is not liened and the following question will not arise. If you say that it is liened, what is the halakha with regard to one who borrowed money from one lender and then borrowed money from another lender, stating in both cases that the property that he will acquire shall be liened, and he then acquired land? Does the first lender have a lien upon the property or does the last lender have a lien upon the property?

אָמַר רַב נַחְמָן: הָא מִילְּתָא אִיבַּעְיָא לַן, וּשְׁלַחוּ מִתָּם: רִאשׁוֹן קָנָה. רַב הוּנָא אָמַר: יַחְלוֹקוּ. וְכֵן תָּנֵי רַבָּה בַּר אֲבוּהּ: יַחְלוֹקוּ. אָמַר רָבִינָא: מַהְדּוּרָא קַמָּא דְּרַב אָשֵׁי, אָמַר לַן: רִאשׁוֹן קָנָה. מַהְדּוּרָא בָּתְרָא דְּרַב אָשֵׁי, אָמַר לַן: יַחְלוֹקוּ. וְהִלְכְתָא: יַחְלוֹקוּ.

Rav Naḥman said: This matter was raised before us, and the Sages sent a response from there, from Eretz Yisrael: The first lender acquires the property, since his lien came first. Rav Huna says: The lenders divide the property between them. And so teaches Rabba bar Avuh: The lenders divide the property between them. Ravina said: The first time Rav Ashi taught this matter he said to us: The first lender acquires the property. The last time Rav Ashi taught this matter he said to us: The lenders divide the property between them. And the halakha is that they divide the property between them.

מֵיתִיבִי: לְשֶׁבַח קַרְקָעוֹת כֵּיצַד? הֲרֵי שֶׁמָּכַר שָׂדֶה לַחֲבֵירוֹ וְהִשְׁבִּיחָהּ, וּבָא בַּעַל חוֹב וּטְרָפָהּ, כְּשֶׁהוּא גּוֹבֶה – גּוֹבֶה אֶת הַקֶּרֶן מִנְּכָסִין מְשׁוּעְבָּדִין, וְאֶת הַשֶּׁבַח מִנְּכָסִין בְּנֵי חוֹרִין. וְאִם אִיתָא, חֲצִי שֶׁבַח מִבְּעֵי לֵיהּ!

The Gemara raises an objection from the aforementioned baraita: With regard to collecting a debt in a case of enhancement of land, how does it occur that the debt cannot be collected from liened property that has been sold? This question arises in a case where one sold a field to another, and the buyer enhanced it, and a creditor came and repossessed it from the buyer. When the buyer collects the value of the land from the seller, he collects the principal even from liened property that was sold to others, but he collects the value of the enhancement only from unsold property. And if it is so that in general, the property is divided between the creditors, then, since both the creditor and the buyer have a lien upon the enhancement of the property, the buyer should collect only half of the value of the enhancement.

מַאי ״גּוֹבֶה״ נָמֵי דְּקָתָנֵי – חֲצִי שֶׁבַח.

The Gemara answers: What does the baraita mean, as well, when it teaches that the buyer collects the enhancement? The baraita means that he collects half of the value of the enhancement.