בבא בתרא קעה
הָכָא נָמֵי, אָדָם עָשׂוּי שֶׁלֹּא לְהַשְׂבִּיעַ אֶת עַצְמוֹ!
Here, too, with regard to the Temple treasury, apply the same principle and say: A person is prone to make false statements so as not to make himself appear sated. It is therefore possible that the money was not owed, and payment should not be made from the consecrated property.
כִּי קָאָמַר רַב הוּנָא הָתָם – דְּנָקֵיט שְׁטָרָא.
The Gemara answers: When does Rav Huna say that payment should be made there, in the case of a person on his deathbed who consecrated all his property? In a case where the creditor, to whom the deceased admitted owing money, holds a promissory note corroborating the deceased’s admission.
מִכְּלָל דְּרַב וּשְׁמוּאֵל – דְּלָא נָקֵיט שְׁטָרָא; אָמַר ״תְּנוּ״ – נוֹתְנִין?! מִלְוֶה עַל פֶּה הֲוָה, וְרַב וּשְׁמוּאֵל דְּאָמְרִי תַּרְוַיְיהוּ: מִלְוֶה עַל פֶּה – אֵינוֹ גּוֹבֶה לֹא מִן הַיּוֹרְשִׁין וְלֹא מִן הַלָּקוֹחוֹת!
The Gemara comments: By inference, the statement of Rav and Shmuel, where the money is not given to the creditor unless the person on his deathbed explicitly requests that it be given, is applicable in a case where the creditor does not hold a promissory note corroborating the admission. The Gemara asks: If so, how can it be that if the deceased says: Give him the money, the children give it to him, i.e., it is collected from the estate left to the heirs, as it is a loan by oral contract, and as Rav and Shmuel both say: One does not collect a loan by oral contract from heirs nor from purchasers who bought land from the debtor after the loan was granted?
אֶלָּא אָמַר רַב נַחְמָן: אִידֵּי וְאִידֵּי דְּנָקֵיט שְׁטָרָא, וְלָא קַשְׁיָא – הָא דִּמְקוּיָּים, הָא דְּלָא מְקוּיָּים; אָמַר ״תְּנוּ״ – קַיְּימֵיהּ לִשְׁטָרֵיהּ, לֹא אָמַר ״תְּנוּ״ – לָא קַיְּימֵיהּ לִשְׁטָרֵיהּ.
The Gemara gives a different answer to this question. Rather, Rav Naḥman said: Both this case and that case are discussing where the creditor holds a promissory note corroborating the deceased’s admission. And yet it is not difficult. In this ruling of Rav Huna, the case is where the creditor’s promissory note has been ratified by the court, and in that ruling of Rav and Shmuel, the case is where the creditor’s promissory note has not been ratified by the court. Therefore, in the latter case, if the person on his deathbed says: Give him the money, he has in effect ratified the creditor’s promissory note, and if he did not say: Give him the money, he has not ratified the creditor’s promissory note.
אָמַר רַבָּה: שְׁכִיב מְרַע שֶׁאָמַר ״מָנֶה לִפְלוֹנִי בְּיָדִי״, וְאָמְרוּ יְתוֹמִין ״פָּרַעְנוּ״ – נֶאֱמָנִין. ״תְּנוּ מָנֶה לִפְלוֹנִי״, וְאָמְרוּ יְתוֹמִין ״פָּרַעְנוּ״ – אֵין נֶאֱמָנִין.
§ Rabba says that in the case of a person on his deathbed who says: So-and-so has one hundred dinars in my possession, and the orphans who inherited his property subsequently said: We repaid the debt, they are deemed credible. But if the father said: Give one hundred dinars to so-and-so, as I owe it to him, and subsequently the orphans said: We repaid him the money, they are not deemed credible.
כְּלַפֵּי לְיָיא? אִיפְּכָא מִסְתַּבְּרָא! אָמַר ״תְּנוּ מָנֶה״ – כֵּיוָן דְּפַסְקַהּ אֲבוּהוֹן לְמִילְּתָא, אִיכָּא לְמֵימַר דְּפַרְעֵיהּ. ״מָנֶה לִפְלוֹנִי בְּיָדִי״ – כֵּיוָן דְּלָא פְּסַק אֲבוּהוֹן לְמִילְּתָא, אִיכָּא לְמֵימַר דְּלָא פַּרְעֵיהּ!
The Gemara objects: Isn’t it the opposite [kelappei layya]? The opposite is more reasonable. If the father says: Give one hundred dinars to so-and-so, since their father stated the matter assertively, as he gave an explicit directive, it could be said that the heirs repaid the money. But if he said: So-and-so has one hundred dinars in my possession, since the orphans’ father did not state the matter assertively, it could be said that the heirs did not repay the creditor.
אֶלָּא אִי אִיתְּמַר, הָכִי אִיתְּמַר: שְׁכִיב מְרַע שֶׁאָמַר ״מָנֶה לִפְלוֹנִי בְּיָדִי״, וְאָמְרוּ יְתוֹמִין: ״חָזַר וְאָמַר לָנוּ אַבָּא: פָּרַעְתִּי״ – נֶאֱמָנִין. מַאי טַעְמָא? אִדְּכוֹרֵי מִידְּכַר. ״תְּנוּ מָנֶה לִפְלוֹנִי״, וְאָמְרוּ יְתוֹמִין: ״חָזַר וְאָמַר אַבָּא: פָּרַעְתִּי״ – אֵין נֶאֱמָנִין. דְּאִם אִיתָא דְּפַרְעֵיהּ, לָא הֲוָה אָמַר ״תְּנוּ״.
The Gemara reformulates Rabba’s statement: Rather, if Rabba’s statement was stated, it was stated as follows: In a case of a person on his deathbed who says: So-and-so has one hundred dinars in my possession, and the orphans subsequently said: After his admission, Father retracted his words and said to us: I repaid the debt, they are deemed credible. What is the reason for this? At first the father had forgotten, but subsequently he remembered repaying the debt. But if the father says assertively: Give one hundred dinars to so-and-so, and the orphans subsequently said: Afterward Father retracted his words and said: I repaid the debt, they are not deemed credible. The reason is that if it is so that the father repaid the debt or was uncertain about the matter, he would not say with such assertiveness: Give the money to him.
בָּעֵי רָבָא: שְׁכִיב מְרַע שֶׁהוֹדָה, מַהוּ? צָרִיךְ לוֹמַר ״אַתֶּם עֵדַי״, אוֹ אֵין צָרִיךְ לוֹמַר ״אַתֶּם עֵדַי״? צָרִיךְ שֶׁיֹּאמַר ״כְּתוֹבוּ״ אוֹ אֵין צָרִיךְ לוֹמַר ״כְּתוֹבוּ״? אָדָם מְשַׁטֶּה בִּשְׁעַת מִיתָה, אוֹ אֵין אָדָם מְשַׁטֶּה בִּשְׁעַת מִיתָה?
§ Rava raises a dilemma: With regard to a person on his deathbed who, upon hearing someone’s monetary claim against him, admitted owing the money to him, what is the halakha? Is it required for him to say to two people: You are my witnesses, as is usually necessary in order to prove that an admission is stated in earnest and not in jest? Or is it perhaps not required for him to say: You are my witnesses, since he is a person on his deathbed, whose instructions are generally binding? Is it required that he say to two people: Write my admission in a document, as is usually required, or is it not required for him to say: Write my admission in a document? The issue in question here is: Does a person sometimes jest at the time of death, i.e., while on his deathbed, or can it be assumed that a person does not jest at the time of death?
בָּתַר דְּבַעְיָא, הֲדַר פַּשְׁטַהּ – אֵין אָדָם מְשַׁטֶּה בִּשְׁעַת מִיתָה, וְדִבְרֵי שְׁכִיב מְרַע כִּכְתוּבִין וְכִמְסוּרִין דָּמוּ.
After Rava raised the dilemma, he then resolved it, and ruled: A person does not jest at the time of death, and therefore the statements of a person on his deathbed are considered as if they were written in a document and transmitted to the relevant party.
מַתְנִי׳ הַמַּלְוֶה אֶת חֲבֵירוֹ בִּשְׁטָר – גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים. עַל יְדֵי עֵדִים – גּוֹבִין מִנְּכָסִים בְּנֵי חוֹרִין.
MISHNA: One who lends money to another by means of a promissory note can collect the debt from liened property that had been sold to others by the debtor after the loan was granted. One who lends money by means of witnesses, without recording the loan in a promissory note, can collect the debt only from unsold property.
הוֹצִיא עָלָיו כְּתַב יָדוֹ שֶׁהוּא חַיָּיב לוֹ – גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין.
If one presents to a debtor a document in the handwriting of the debtor stating that he owes money to him, but without witnesses signed on the document, the creditor can collect only from unsold property.
עָרֵב הַיּוֹצֵא לְאַחַר חִיתּוּם שְׁטָרוֹת – גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין.
In the case of a guarantor whose commitment emerged after the signing of the promissory note, the creditor can collect the sum only from unsold property of the guarantor.
מַעֲשֶׂה וּבָא לִפְנֵי רַבִּי יִשְׁמָעֵאל, וְאָמַר: גּוֹבֶה מִנְּכָסִים בְּנֵי חוֹרִין. אָמַר לוֹ בֶּן נַנָּס: אֵינוֹ גּוֹבֶה לֹא מִנְּכָסִים מְשׁוּעְבָּדִים וְלֹא מִנְּכָסִים בְּנֵי חוֹרִין.
The mishna relates: An incident occurred where such a case came before Rabbi Yishmael, and he said: The creditor can collect the sum from unsold property of the guarantor, but not from liened property that he has sold to others. Ben Nannas said to Rabbi Yishmael: The creditor cannot collect the sum from the guarantor at all, not from liened property that has been sold, nor from unsold property.
אָמַר לוֹ: לָמָּה? אָמַר לוֹ: הֲרֵי הַחוֹנֵק אֶת אֶחָד בַּשּׁוּק, וּמְצָאוֹ חֲבֵירוֹ וְאָמַר לוֹ ״הַנַּח לוֹ [וַאֲנִי אֶתֵּן לָךְ]״ – פָּטוּר, שֶׁלֹּא עַל אֱמוּנָתוֹ הִלְוָהוּ. אֶלָּא אֵיזֶה הוּא עָרֵב שֶׁהוּא חַיָּיב? ״הַלְוֵהוּ, וַאֲנִי נוֹתֵן לָךְ״ – חַיָּיב, שֶׁכֵּן עַל אֱמוּנָתוֹ הִלְוָהוּ.
Rabbi Yishmael said to him: Why not? Ben Nannas said to him: If one was strangling someone in the marketplace, demanding repayment of a loan, and another person found him doing so and said to the attacker: Leave him alone and I will give you the money he owes, the person who intervened is exempt from paying, as the creditor did not loan the money in the first place based on his trust of the one who intervened. Rather, who is a guarantor who is obligated to repay the loan he has guaranteed? One who tells the creditor before the loan takes place: Lend money to him, and I will give you the repayment, as in that case the creditor did loan the money based on his trust of the guarantor.
וְאָמַר רַבִּי יִשְׁמָעֵאל: הָרוֹצֶה שֶׁיַּחְכִּים – יַעֲסוֹק בְּדִינֵי מָמוֹנוֹת; שֶׁאֵין לָךְ מִקְצוֹעַ בַּתּוֹרָה יוֹתֵר מֵהֶן, וְהֵן כְּמַעְיָין הַנּוֹבֵעַ. וְהָרוֹצֶה שֶׁיַּעֲסוֹק בְּדִינֵי מָמוֹנוֹת – יְשַׁמֵּשׁ אֶת שִׁמְעוֹן בֶּן נַנָּס.
And Rabbi Yishmael thereupon said: One who wants to become wise should engage in the study of monetary law, as there is no greater discipline in the Torah, and it is like a flowing spring. And, he added, one who wants to engage in the study of monetary law should attend to, i.e., become a disciple of, Shimon ben Nannas.
גְּמָ׳ אָמַר עוּלָּא: דְּבַר תּוֹרָה – אֶחָד מִלְוֶה בִּשְׁטָר, וְאֶחָד מִלְוֶה עַל פֶּה – גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים. מַאי טַעְמָא? שִׁעְבּוּדָא דְּאוֹרָיְיתָא. וְאֶלָּא מַה טַּעַם אָמְרוּ מִלְוֶה עַל פֶּה אֵינוֹ גּוֹבֶה אֶלָּא מִנְּכָסִין בְּנֵי חוֹרִין? מִשּׁוּם פְּסֵידָא דְלָקוֹחוֹת.
GEMARA: Ulla says: By Torah law, a creditor, whether in the case of a loan with a promissory note or the case of a loan by oral contract, can collect the debt from liened property that has been sold by the debtor subsequent to his receiving the loan. What is the reason for this? The property of a debtor at the time of the loan, even an oral loan, is liened by Torah law. And what is the reason the Sages said that one who gives a loan by oral contract can collect the debt only from unsold property? Because of the loss that would be incurred by purchasers of land if the seller’s creditors could seize the land they have purchased.
אִי הָכִי, מִלְוֶה בִּשְׁטָר נָמֵי! הָתָם, אִינְהוּ נִינְהוּ דְּאַפְסִידוּ אַנַּפְשַׁיְיהוּ.
The Gemara asks: If so, a loan with a promissory note should also not be collected from purchasers of property, as this would cause them a loss. The Gemara answers: There, in the case of a loan recorded in a promissory note, the purchasers, who neglected to investigate the financial status of the seller before purchasing land from him, brought the loss upon themselves. By contrast, loans by oral contract are often impossible to discover, even with a thorough investigation.
וְרַבָּה אָמַר: דְּבַר תּוֹרָה – אֶחָד מִלְוֶה בִּשְׁטָר וְאֶחָד מִלְוֶה עַל פֶּה – אֵינוֹ גּוֹבֶה אֶלָּא מִנְּכָסִים בְּנֵי חוֹרִין. מַאי טַעְמָא? שִׁעְבּוּדָא לָאו דְּאוֹרָיְיתָא. וּמַה טַּעַם אָמְרוּ מִלְוֶה בִּשְׁטָר גּוֹבֶה מִנְּכָסִים מְשׁוּעְבָּדִים? כְּדֵי שֶׁלֹּא תִּנְעוֹל דֶּלֶת בִּפְנֵי לֹוִין.
And Rabba says: By Torah law, a creditor, whether in the case of a loan with a promissory note or the case of a loan by oral contract, can collect the debt only from the debtor’s unsold property. What is the reason for this? The property of a debtor is not liened by Torah law. And what is the reason the Sages said that one who gives a loan with a promissory note can collect the debt from liened property that has been sold? So as not to lock the door in the face of potential borrowers. If one could not collect a debt by taking liened property that has been sold, people would be hesitant to put their money at risk by lending it.
אִי הָכִי, מִלְוֶה עַל פֶּה נָמֵי! הָתָם לֵית לֵיהּ קָלָא.
The Gemara asks: If that is so, that there is a desire to encourage people to lend money by granting greater power of collection to creditors, a loan by oral contract should also be collectible from liened property that has been sold. The Gemara answers: There, in the case of a loan by oral contract, it has no publicity associated with it, so that purchasers often cannot find out about it, even after a thorough investigation, and it would be an unfair burden on them to have the property purchased by them seized in such cases.
וּמִי אָמַר רַבָּה הָכִי? וְהָא אָמַר רַבָּה: גָּבוּ קַרְקַע – יֵשׁ לוֹ. גָּבוּ מָעוֹת – אֵין לוֹ!
The Gemara asks: And did Rabba really say this? But doesn’t Rabba say, in the case of a firstborn son, that if he and his brothers collected a debt from land, he has the right to receive a double portion of that payment, but if they collected a debt from money, he does not have the right to a double portion? A firstborn son is entitled to a double share of inheritance of any property that was owned by his father at the time of his death, but not to profits or income that accrue to the estate after his death. If a debt owed to the father is collected from land after his death, Rabba said that the firstborn is entitled to a double portion, indicating that the land was considered in the father’s possession even before he died, which indicates that Rabba holds that the property of a debtor is liened to a creditor by Torah law.
וְכִי תֵּימָא אֵיפוֹךְ דְּרַבָּה לְעוּלָּא וּדְעוּלָּא לְרַבָּה, וְהָא אָמַר עוּלָּא: דְּבַר תּוֹרָה, בַּעַל חוֹב דִּינֵיהּ בְּזִבּוּרִית!
And if you would say: The opinions as they were cited earlier are attributed incorrectly, and it is necessary to reverse the two opinions, and exchange the opinion of Rabba for that of Ulla, and that of Ulla for that of Rabba, there is a difficulty: But doesn’t Ulla say elsewhere: By Torah law the halakha of a creditor is to collect his debt only from inferior-quality land?
אֶלָּא רַבָּה – טַעְמָא דִּבְנֵי מַעְרְבָא קָאָמַר, וְלֵיהּ לָא סְבִירָא לֵיהּ.
The Gemara resolves the contradiction between Rabba’s two statements: Rather, Rabba was stating an explanation for the opinion of the people of the West, Eretz Yisrael, cited earlier (125a), but he himself does not hold accordingly, as he holds that a firstborn son is not entitled to a double portion of a debt collected from land.
רַב וּשְׁמוּאֵל דְּאָמְרִי תַּרְוַיְיהוּ: מִלְוֶה עַל פֶּה – אֵינוֹ גּוֹבֶה לֹא מִן הַיּוֹרְשִׁין וְלֹא מִן הַלָּקוֹחוֹת. מַאי טַעְמָא? שִׁעְבּוּדָא לָאו דְּאוֹרָיְיתָא.
The Gemara continues to discuss the issue of the extent of liens on a debtor’s property. Rav and Shmuel both say: In the case of a loan by oral contract, the creditor can collect the debt only from the one who took the loan, but not from the heirs of the debtor after his death, and not from purchasers of his property. What is the reason for this? They maintain that the property of a debtor is not liened by Torah law.
רַבִּי יוֹחָנָן וְרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ דְּאָמְרִי תַּרְוַיְיהוּ: מִלְוֶה עַל פֶּה – גּוֹבֶה בֵּין מִן הַיּוֹרְשִׁין, וּבֵין מִן הַלָּקוֹחוֹת. מַאי טַעְמָא? שִׁעְבּוּדָא דְּאוֹרָיְיתָא.
Rabbi Yoḥanan and Rabbi Shimon ben Lakish both say: In the case of a loan by oral contract, the creditor can collect the debt both from the heirs of the debtor after his death and from the purchasers of his property. What is the reason for this? They maintain that the property of a debtor is liened by Torah law.
מֵיתִיבִי: הַחוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים, וְנָפַל עָלָיו שׁוֹר וַהֲרָגוֹ – פָּטוּר. וְלֹא עוֹד, אֶלָּא שֶׁאִם מֵת הַשּׁוֹר – יוֹרְשֵׁי בַּעַל הַבּוֹר חַיָּיבִים לְשַׁלֵּם דְּמֵי שׁוֹר לִבְעָלָיו!
The Gemara raises an objection to the opinion of Rav and Shmuel from a baraita (Tosefta, Bava Kamma 6:2): If one was digging a pit in the public domain, and an ox fell on him and killed him as he was in the pit, the owner of the ox is exempt from paying for the damage caused, as it is the one who dug the pit who is at fault. Moreover, if it occurred that the ox died as a result of the fall, the heirs of the owner of the pit are liable to pay the value of the ox to its owner. Compensation for damages is comparable to a loan by oral contract, and yet the baraita states that the heirs of the culpable party must pay it.
אָמַר רַבִּי אִלְעָא אָמַר רַב: בְּשֶׁעָמַד בַּדִּין.
Rabbi Ela says that Rav says: The baraita is discussing a case in which the one who dug the pit stood trial for the damage before he died, and once judgment is rendered by a court, the resulting financial liability is comparable to a loan with a promissory note.
וְהָא ״הֲרָגוֹ״ קָתָנֵי! אָמַר רַב אַדָּא בַּר אַהֲבָה: שֶׁעֲשָׂאוֹ טְרֵפָה.
The Gemara objects: But it is taught in the baraita that the ox killed him by falling on him. How then can one say that he stood trial? Rav Adda bar Ahava says: The baraita does not mean that the ox killed him instantly, but that it rendered him one who has a wound that will cause him to die within twelve months [tereifa], and there was enough time before his death to try him and deem him liable to pay for damages.
וְהָא אָמַר רַב נַחְמָן, תָּנֵי תַּנָּא: ״מֵת וּקְבָרוֹ״! הָתָם – דְּיָתְבִי דַּיָּינֵי אַפּוּמָּא דְבֵירָא, וְחַיְּיבוּהוּ.
The Gemara objects that there is a different version of the baraita according to which this interpretation is not possible: But doesn’t Rav Naḥman say that a certain tanna taught the baraita with a different formulation, stating that the one who dug the pit died from the impact of the ox and the ox in effect buried him in the ground at the bottom of the pit? In this scenario it would be impossible to take the one who dug the pit to court to stand trial. The Gemara answers: There, according to that second version, it is discussing a case where judges sat at the opening of the pit and deemed liable the one who dug the pit to pay for the damage before he died.
