Babylonian Talmud: Tractate Baba Bathra

Folio 175a

[could it not then be said] here¹  also [that] a person is wont to disclaim wealth for himself!²  — R. Huna gave his ruling there¹  only when [the creditor] was in possession of a bond of indebtedness.³  [Does this] imply that Rab and Samuel [deal with a case] where the [creditor] is not in possession of a bond?⁴  [Why, then,] is [the maneh] to be given [where the dying man] said 'Give'? [This, surely,] is [only] a verbal loan, and both Rab and Samuel stated [that] a verbal loan may be recovered neither from the heirs nor from the buyers!⁵  — But, said R. Nahman, both⁶  [are cases] where [the creditor] is in possession of a bond, but⁷  there is no contradiction. The one [is a case of a bond] that was authenticated;⁸  the other where it was not authenticated. [Consequently,⁹  if] he said, 'Give,' he [thereby] confirmed¹⁰  the bond. [If, however], he did not say, 'Give,' he did not confirm¹¹  the bond.

Rabbah stated: If a dying man said, 'I owe a maneh to X', and the orphans stated, 'We have paid it'< they are believed. [If, however, he said,] 'Give a maneh to X', and the orphans stated, 'We have paid it', they are not believed. Topsy-turvy!¹²  [Does not] the reverse stand to reason? If he¹³  said, 'Give a maneh', since their father had given a definite order,¹⁴  it might be [justly] assumed that they discharged [the debt]; [if, however, he said.] 'I owe a maneh to X', since their father did not give a definite order, it ought to be assumed that they did not discharge it!¹⁵  — If, however, [such a statement] was made, it was made¹⁶  in the following terms: If a dying man said, 'I owe a maneh to X', and the orphans declared, 'Our father subsequently told us that he paid',¹⁷  they are believed. What is the reason? He might have [subsequently] recalled it¹⁸  to his mind. [If, however, he said,] 'Give a maneh to X', and his orphans declared, 'Our father subsequently told us that he paid',¹⁷  they are not believed; for had it been the case that he paid it, he would not have used [the word], 'Give'.¹⁹

Raba inquired: What [is the law where] a dying man admitted [a debt]? Is it necessary [for him] to say [also] 'Be you my witnesses,²⁰  or is it not necessary to say, 'Be you my witnesses'? [Is it assumed that] a man²¹  might jest in the hour of his death or that a man does not jest in the hour of his death? Is it necessary [for him] to say. 'Write',²²  or is it not necessary to say, 'Write'? — After having raised these questions, he answered them himself:²³  No one jests in the hour of [his] death, and the words of a dying man are regarded [legally] as written and delivered.²⁴

MISHNAH. IF A MAN LENT [MONEY] TO AN OTHER ON [THE SECURITY OF] A BOND OF INDEBTEDNESS,²⁵  HE MAY COLLECT [THE DEBT] FROM MORTGAGED PROPERTY.²⁶  [IF, HOWEVER, THE LOAN WAS MADE] BEFORE²⁷  WITNESSES,²⁸  HE²⁹  MAY RECOVER [HIS DEBT] FROM FREE PROPERTY [ONLY].

1. In the case of consecrated property.
2. Consequently, it might be rightly assumed that his admission of indebtedness to a creditor amounted to no more than a desire to conceal his wealth. How then could R. Huna state that the sum specified must be paid to the creditor?
3. And the dying man only confirmed it. Had there been no bond, but a verbal admission only, R. Huna would not have authorised payment to the alleged creditor.
4. And this is the reason why the creditor must not be paid if the dying man did not add, 'Give'?
5. Of the debtor.
6. Lit., 'these and those'. The statement of R. Huna, on the one hand, and that of Rab and Samuel on the other.
7. As to the question why in the case dealt with by Rab and Samuel it was necessary for the instruction, 'Give', to be added.
8. By the Court.
9. In the latter case.
10. And the sum is to be paid to the creditor though his bond had no authentication.
11. Hence the possibility of his desire to conceal his children's wealth must be taken into consideration, and the sum must not be paid in the absence Of an authentication in court.
12. V. supra p. 435. n. 27.
13. The dying man.
14. Lit., 'cut off the thing'.
15. Why, then, did Rabbah give a decision which is directly opposed to such logical reasoning?
16. Lit., 'it was said'.
17. Lit., 'I paid'.
18. The fact that ho had already repaid that debt.
19. His use of the definite order, 'Give', implies that he was absolutely certain that the debt had not been discharged.
20. As is the case with a man in good health (cf. Sanh. 29a), otherwise he can subsequently deny all liability, pleading that his admission was a mere jest.
21. For his order of the text, of. BaH and Rashal, a.l.
22. I.e., a bond. In the case of a pots in in good health such an order is essential to the validity of the creditor's claim (cf. supra 40a).
23. Lit., 'after he enquired he returned and solved it'.
24. Hence there is no need to add, 'Be my witnesses', or, 'Write out a bond'.
25. Even though the clause pledging security had not been entered (v. B.M. 15b, and cf. supra 157a).
26. Which was mortgaged subsequent to the date of the loan, and certainly from property in possession of the debtor.
27. Lit., 'by the hands of'.
28. And no bond was written.
29. Cf. BaH, a.l.

[IF A PERSON] PRODUCED AGAINST ANOTHER HIS¹  NOTE-OF-HAND²  [SHOWING] THAT [THE LATTER] OWES HIM [A SUM OF MONEY], HE MAY RECOVER [IT] FROM HIS FREE PROPERTY.³

[IF THE GUARANTEE AND SIGNATURE OF] A GUARANTOR APPEAR⁴  BELOW THE SIGNATURES TO BONDS OF INDEBTEDNESS, [THE CREDITOR] MAY RECOVER [HIS DEBT] FROM [THE GUARANTOR'S] FREE PROPERTY.⁵  SUCH A CASE ONCE CAME BEFORE R. ISHMAEL, WHO DECIDED THAT [THE DEBT MAY] BE RECOVERED FROM [THE GUARANTOR'S] FREE PROPERTY. BEN NANNUS [HOWEVER] SAID TO HIM, '[THE DEBT MAY] BE REPLIED NEITHER FROM SOLD PROPERTY NOR FROM FREE PROPERTY.' 'WHY?' THE OTHER ASKED HIM. BEHOLD', HE REPLIED TO HIM, 'THIS IS JUST AS IF A CREDITOR] WERE [IN THE ACT (IF] THROTTLING A DEBTOR⁶  IN THE STREET,⁷  AND HIS FRIEND FOUND HIM AND SAID, "LEAVE HIM ALONE AND⁸  WILL PAY YOU", HE WOULD [CERTAINLY] BE EXEMPT [FROM LIABILITY], SINCE THE LOAN WAS NOT MADE THROUGH TRUST IN HIM.⁸  BUT WHAT MANNER OF GUARANTOR, HOWEVER, IS LIABLE [TO REFUND A DEBT]? [IF THE GUARANTOR SAID], "LEND HIM [A SUM OF MONEY] AND I WILL REPAY [IT] TO YOU", HE IS LIABLE, SINCE THE LOAN WAS MADE THROUGH TRUST IN HIM.

R. ISHMAEL FURTHER STATED: HE WHO WOULD BE WISE SHOULD ENGAGE IN THE STUDY OF CIVIL LAWS,⁹  FOR THERE IS NO BRANCH IN THE TORAH MORE COMPREHENSIVE¹⁰  THAN THEY, AND THEY ARE LIKE A WELLING FOUNTAIN. AND HE THAT WOULD ENGAGE IN THE STUDY OF CIVIL LAWS LET HIM WAIT¹¹  UPON SIMEON BEN NANNUS.

GEMARA. 'Ullah said: [According to] the word of the Torah, either a loan [secured] by a bond or a verbal loan may be recovered from mortgaged property. What is the reason? — The hypothecary obligation [involved] is Biblical.¹²  Why then has it been said [that] a verbal loan may be collected from free property only? — On account of [possible] loss to the buyers.¹³  If so,¹⁴  [the same law should apply] also [to] a loan [that is secured] by a bond!¹⁵  [In this case]¹⁶  they have brought the loss upon themselves.¹⁷

Rabbah, however, said: [According to] the word of the Torah either a loan [secured] by a bond or a verbal loan may be recovered from free property only. What is the reason? — The hypothecary obligation [involved] is not Biblical.¹⁸  Why then has it been said that a loan [secured] by a bond may be recovered from sold property? — In order that doors may not be locked in the face of borrowers.¹⁹  If so, [the same law should apply] also [to] a verbal loan! — In that case the loan is not [sufficiently] known.²⁰

Did Rabbah, however, give such [a ruling]?²¹  Surely, Rabbah said: If land was collected²²  he²³  receives [a double portion,²⁴  but] if money was collected, he does not, and R. Nahman said: If money was collected he has [a double portion]!²⁵  And if it be suggested that [the statement] of Rabbah should be transposed to 'Ulla and that of 'Ulla to Rabbah,²⁶  surely [it may be pointed out] 'Ulla said: [According to] the word of the Torah a creditor is to receive²⁷  of the worst!²⁸  — Rabbah [only] stated the reason of the Palestinians,²⁹  but he himself does not share [their view].³⁰

Both Rab and Samuel stated: A verbal loan may be recovered neither from the heirs³¹  nor from the buyer.³²  What is the reason? — The hypothecary obligation [involved] is not Biblical.

Both R. Johanan and R. Simeon b. Lakish stated: A verbal loan may be recovered either from the heirs³³  or from the buyers.³⁴  What is the reason? — The hypothecary obligation [involved] is Biblical. An objection was raised: If [a man] was digging a pit in a public domain and an ox falls upon him and kills him, [the owner of the ox] is exempt.³⁵  Moreover, if the ox dies,³⁶  [compensation for] its value must be paid to its owner by the heirs of the owner of the pit!³⁷  — R. Elai replied in the name of Rab: [This law³⁸  is applicable to the case only] where he³⁹  appeared before [a court of] law.⁴⁰  But, surely, it was stated that it killed him!⁴¹  — R. Adda b. Ahabah replied: [This is a case] where he was fatally injured.⁴²  But R. Nahman, surely. said that a tanna⁴³  recited [the statement as follows]: It killed and buried him!⁴⁴  — That [is a case] where judges sat at the mouth of the Pit and convicted him.⁴⁵

1. The debtor's.
2. And no other evidence.
3. Mortgaged property may be seized only where the creditor can produce a bond duly signed by qualified witnesses. Y. Gemara, infra.
4. Lit., 'which goes out'.
5. But not from property he sold. Since the signatures of the witnesses do not appear below the guarantee, the guarantor's undertaking can have no more force than a verbal promise, or a loan that has not been secured by a bond, in which case no mortgaged property is pledged to the creditor.
6. Lit., 'one'.
7. I.e., using violence against him.
8. Such a guarantee was offered for the sole purpose of rescuing the debtor from the creditor's violence. It cannot be regarded as a serious guarantee to discharge the debt, since the debt was incurred prior to the guarantee.
9. Lit., 'laws of monies' or 'property'.
10. Cf. BaH, a.l.
11. Lit., 'serve', as a disciple to his master.
12. Cf. Deut. XXIV, 11. Every debt carries with it a pledge of the debtor's property in favour of the creditor.
13. Who might not be aware of the existence of the loan and would thus purchase property which might at any time be taken away from them.
14. That the interests of the buyers are to be safeguarded.
15. Cf. n. 6.
16. Lit., 'there', a loan secured by a bond.
17. A loan that has been secured by a bond and made or acknowledged in the presence of witnesses receives due publicity, and intending buyers are well aware of its existence.
18. V. B.M. 114b.
19. No man would consent to lend any money if no land security were available.
20. Lit., 'it has no voice'.
21. Lit., 'say so', that the hypothecary obligation involved by debts is not Biblical.
22. By sons, in payment of a debt that was due to their deceased father.
23. The firstborn son.
24. Because Biblically land is deemed to have been in their father's virtual possession, and a firstborn son is entitled to a double share in all that his father possessed. Cf. Deut. XXI, 17.
25. V. supra 124b; B.K. 43a. At any rate, in view of this statement of Rabbah's, the debtor's land is Biblically deemed to be in the creditor's virtual possession; how then could ho say here that the hypothecary obligation is not Biblical?
26. And thus Rabbah's view here would be that the pledging of property is Biblical, in agreement with his statement, supra 124b, that a firstborn receive a double portion where land was collected, and 'Ulla's view would be that the hypothecary obligation is not Biblical.
27. Lit., 'his right'.
28. Of the lands of the debtor. And this is deduced from a Biblical text (v. B.K. 8a). which proves that, according to 'Ulla, the debtor's landed property is pledged to the creditor Biblically.
29. Who, as reported supra 124b, stated that a firstborn son takes a double portion in a loan.
30. But maintains that, consistent with his view here that the hypothecary obligation is not Biblical, a firstborn son does not receive a double portion in a loan that was due to his deceased father, whether money or land was collected.
31. Of the debtor.
32. Though the dates of their purchases were later than the date of the loan.
33. V. p. 775, n. 24.
34. Cf. p. 775, n. 15.
35. Since it is the fault of the digger of the pit that the ox had fallen upon him.
36. Through the fall.
37. The liability to compensation is, surely, of no greater legal force than that of a verbal loan (since no bond can be produced in support of it), and yet it has been said that it may be recovered from heirs; how, then, could Rab and Samuel state that heirs are not liable to repay a verbal loan incurred by their father?
38. That heirs are to pay compensation for their father's liability.
39. Who was digging the pit.
40. And was ordered to pay compensation. An order made by a court has the same legal force as that of a loan that is secured by a written bond.
41. A dead man could not appear before a court!
42. The infliction of injuries from which one dies may be described as 'killing'. A man injured, though fatally, may be able to appear before a court.
43. 'Ar. 7a.
44. In the pit. How could it be said that he appeared before a court.
45. Just before he died.