Bava Batra 157a (קנז.) — the Talmud in English

Rabbi Yehoshua

says:

if

with regard to weekdays, they said

that, since one can perform a kinyan, they instituted that acquisition can be effected through speech,

then all the more so with regard to Shabbat,

when one cannot perform a kinyan on Shabbat, they certainly instituted that he acquire through speech.

Similarly,

they disagreed with regard to a similar matter:

one may acquire an item on behalf of an adult,

since acquisition on behalf of another is based on agency, and an adult who can appoint an agent may have an item acquired on his behalf.

But one may not acquire an item on behalf of a minor,

as he cannot appoint an agent,

these are the words of Rabbi Eliezer.

Rabbi Yehoshua says: With regard to an adult they said,

that although he can acquire an item himself, it is nevertheless possible to acquire it on his behalf;

all the more so with regard to a minor,

for whom they instituted acquisition on his behalf. All this is according to the view of Rabbi Meir.

But

Rabbi Yehuda says

that the dispute is as it was explained in the Mishna:

Rabbi Eliezer says: On Shabbat, his words are upheld, because he cannot write; but not on weekdays. Rabbi Yehoshua says: With regard to Shabbat they said this; all the more so with regard to weekdays. Similarly, one may acquire an item on behalf of a minor, but one may not acquire an item on behalf of an adult; these are the words of Rabbi Eliezer. Rabbi Yehoshua says: With regard to a minor they said this; all the more so with regard to an adult.

MISHNA:

If the house fell upon him and upon his father

and both of them died,

or upon him and upon his inheritors,

whom he would inherit, such as his uncle, who is his closest relative,

and his wife’s marriage contract was upon him,

meaning that he owed the sum of his wife’s marriage contract,

and a creditor

who was owed money by him—

the father’s heirs say: The son died first, and afterward the father died,

and the property passes to the father’s heirs, and it is impossible to collect from it, since the son never acquired it.

and the creditors say: The father died first, and afterward the son died,

and therefore the son first inherited his father’s property and only afterward died. It follows that the property was in his possession, and the creditors may collect their debts from it.

Beit Shammai say: They should divide

since both parties have equal presumptive possession of the property. As a document that is fit to be collected is considered as though it has already been collected, both the creditors and the heirs are therefore considered to have possession of the property, and due to the uncertainty they divide it.

And Beit Hillel say: The property remains in its presumptive status

of the heirs, since they have possession, whereas the creditors still require collection.

GEMARA:

We learned there

we learned in a Mishna:

One who lends money to another by means of a document may collect from liened property,

since the document publicizes the loan, and purchasers would know to take care not to buy the property; therefore, he may collect from them. But one who lends money to another

through witnesses,

without a document, which is considered an oral loan,

may collect

only

from unencumbered property,

since the loan is not publicized.

Shmuel raised a dilemma

Shmuel was uncertain:

“I acquire,” and he acquired—

what is the halakha?

If one wrote in the loan document that he wished to place a lien on property that he would acquire in the future, although at the time of the loan it did not yet belong to him, is it possible to place a lien on property that does not yet exist in the borrower’s possession?

According to Rabbi Meir’s view,

according to the opinion of Rabbi Meir,

who says that a person can transfer ownership of an item that does not yet exist,

as it is possible to transfer ownership of the produce of a palm tree even though the produce has not yet grown, and likewise it is possible to betroth a woman after she converts, even though at present she is not eligible for betrothal,

do not raise the dilemma for yourself

there is no uncertainty,

as he certainly acquires it,

because according to his view it is possible to place a lien on property that does not yet exist. If it is possible to transfer ownership, it is certainly possible to place a lien.

Rather,

when you do raise the dilemma,

Shmuel’s entire uncertainty is

according to the view of the Rabbis, who say

who hold

that a person cannot transfer ownership of an item that does not yet exist

and the question is whether a lien is like a transfer of ownership, or whether placing a lien on such an item is easier.

Come and hear,

the Gemara attempts to resolve the dilemma from a beraita:

and the Sages say,

disagreeing with Admon and holding that if one lent money to another and afterward the lender sold land to the borrower, this is not proof that the borrower had already repaid the debt—for if not, the lender would not have sold him his land but would have collected the money for his debt—as Admon maintains. Rather,

he was clever

the lender was clever,

in that he sold him the land

even though the borrower owed him money,

because he can take it as collateral for the debt.

The land that he sold him will now serve as collateral for the debt, and the lender does not suffer a loss.

Apparently, the land is acquired after the loan; how, then, can it serve as collateral for a debt that preceded its acquisition? It follows from here that if one writes “I acquire,” the property becomes subject to the lien.

Rava said to him,

in rejecting the proof:

Is that what he said—from his own property!?

Here, the land is already presently in the borrower’s possession, and there is therefore no proof that it is possible to place a lien on an item that does not yet exist, since

from his own property, even from the cloak on his shoulders!

From the borrower himself, the lender can collect even from the clothes he is wearing, since this is not collection based on a lien; rather, the lender may collect from anything in the borrower’s possession, even if the borrower did not write “I acquire.”

When we raise the dilemma,

the entire uncertainty concerns a borrower who writes to the lender that he is placing a lien on all his property as well,

“I acquire,”

and afterward

he acquired and sold,

the borrower later acquired property and sold it, or he wrote

“I acquire,”

and

he acquired and bequeathed,

meaning that he acquired property and bequeathed it; may the lender collect from the purchasers or from the heirs?

And the Gemara attempts to resolve the dilemma from our Mishna:

Rav Ḥana said: Come and hear: “If the house fell upon him and upon his father, upon him and upon his inheritors, and his wife’s marriage contract was upon him,”

meaning that the son owed the sum of his wife’s marriage contract, or that he had a creditor to whom he owed money,

the father’s heirs say: The son died first,

and he never inherited his father,

and afterward the father died. And the creditors say: The father died first,

and the son inherited him, and the inheritance is subject to collection of the debt.

And if it enters your mind

if you would entertain the possibility that one who writes

“I acquire,”

and

acquired and sold,

or

“I acquire,”

and

acquired and bequeathed, does not thereby subject the property to a lien,

because it did not exist at the time of the loan, then

even if the father died first,

even if the father died first,

it is “I acquire”!

For the property was not in existence at the time of the loan; he inherited it only afterward. Necessarily, then, since he wrote “I acquire,” it is possible to place a lien on property that will be acquired in the future.

Rav Naḥman said to them

in rejecting the proof:

Our colleague Ze’eira interpreted it,

he explained the Mishna on the basis of:

It is a mitzva incumbent upon orphans to repay their father’s debt.

This is not on account of a lien; rather, when orphans inherit property from their father, they have a mitzva to repay his debts. It is therefore possible that “I acquire” is ineffective for placing a lien on property.

Rav Ashi raised an objection against this,

seeking to uphold the proof: It is impossible to say that the case in our Mishna is based on a mitzva, since if “I acquire” is ineffective, the document has no force at all, as it would be impossible to collect through it from property that the borrower acquires afterward. And if so,

it is like an oral loan,

for no document was written for it,

and Rav and Shmuel both say

they both hold that

an oral loan is collected neither from heirs nor from purchasers,

since it is not publicized, and the Sages did not institute that it may be collected.