Bava Batra 174a (קעד.) — the Talmud in English

Rabban Shimon ben Gamliel says: If the borrower has assets -

both this one and that one

whether the guarantor or the kablan (guarantor who assumes primary liability),

the creditor may not collect from them

first; rather, he must collect from the borrower’s assets.

Rabba bar Ḥana said that Rabbi Yoḥanan said: Wherever Rabban Shimon ben Gamliel stated a ruling in our Mishna -

the halakha is in accordance with him,

even when his is the view of a lone authority.

Except for

three places in which the halakha is not in accordance with him; and these are they:

a.

A guarantor -

this is the ruling stated here, that we rule that the creditor may collect from a kablan even though the borrower has assets, in accordance with the view of the Sages who dispute Rabban Shimon ben Gamliel.

b.

And Sidon,

the ruling discussed incidentally to an incident that occurred in Sidon concerning a condition in a get [Gittin 74a]. The Sages and Rabban Shimon ben Gamliel disputed the case where a husband stipulated that the get would take effect if she gave him a particular object: May she fulfill the condition by giving him the object’s monetary value? The halakha is in accordance with the Sages, that she cannot fulfill the condition by giving the object’s monetary value.

c.

And the final proof,

the final dispute in which he disagreed with the Sages, concerning bringing proof before a court [Sanhedrin 31a]: If a person brings proof to court after admitting that he has no proofs, that proof is not relied upon, although according to Rabban Shimon ben Gamliel it is relied upon.

Rav Huna said:

How does a person become an ordinary guarantor, and how does he become a kablan? If he says:

“Lend to him, and I am a guarantor,”

or

“Lend to him, and I will repay,”

or

“Lend to him, and I am liable,”

or

“Lend to him, and I will give” -

all of these are expressions of ordinary suretyship,

because he used the expression “lend to him,” whose meaning is that the recipient will be the borrower, while he undertakes to guarantee him, so that if the recipient does not repay, he will repay on his behalf.

And if he says:

“Give it to him, and I am a kablan,”

or

“Give it to him, and I will repay,”

or

“Give it to him, and I am liable,”

or

“Give it to him, and I will give” -

all of these are expressions of kablanut,

because he used the expression “give it to him,” meaning: Give it to him at my expense. Since the creditor gave the money to the recipient at his direction, he became a kablan for the loan.

They raised a dilemma before them:

If he used the expression

“Lend to him, and I am a kablan,”

or

“Give it to him, and I am a guarantor”—what is the halakha?

Does what determines whether he is an ordinary guarantor or a kablan depend on whether he says “lend to him” or “give it to him,” or does it depend on whether he says “guarantor” or “kablan”?

Rabbi Yitzḥak said:

If he mentioned

the expression of ordinary suretyship,

its meaning is

ordinary suretyship,

and if he mentioned

the expression of kablanut,

its meaning is

kablanut.

It makes no difference whether he used the expression “lend to him” or the expression “give it to him.”

Rav Ḥisda said: All of these are expressions of kablanut,

even if he said: “Give it to him, and I am a guarantor,” or “Lend to him, and I will repay,” or “Lend to him, and I am liable,” or “Lend to him, and I will give you,”

except

outside]

for “Lend to him, and I am a guarantor,”

because in that expression he mentioned both “lend to him” and “guarantor.” Only in this case did he exclude himself from the category of kablanut.

Rava said: All of these are expressions of ordinary suretyship,

even if he said: “Lend to him, and I am a kablan”; “Give it to him, and I will repay”; or “Give it to him, and I am liable.” The meaning of all of these is: I will repay on his behalf if he himself does not repay. Therefore, the creditor may not collect first from the guarantor, but from the borrower.

Except

outside]

for “Give it to him, and I will give,”

whose meaning is kablanut, since he used the expression of giving both in the creditor’s instruction, “Give it to him,” and in his own undertaking, “and I will give.” In the same expression in which he instructed him to give the money to the recipient, he accepted upon himself the obligation to repay it. And certainly, if he said: “Give it to him, and I am a kablan,” it is as though he himself accepted the loan immediately from the creditor with a guarantee, and the creditor may collect first from whomever he wishes. And the halakha is in accordance with Rava.

Mar bar Ameimar said to Rav Ashi: This is what Father said:

If he says:

“Give it to him, and I will give,”

the creditor has

nothing against the borrower,

but the entire claim is against the kablan alone.

And we reject this:

That is not so;

this is not the case. Rather:

“The borrower is not released from liability to the creditor until he takes and gives with his own hand,”

until the guarantor himself actually takes the money from the creditor and gives it to the borrower. Only then may the creditor claim solely from the guarantor.

Incident:

A certain judge transferred the creditor to the borrower’s assets before suing the borrower,

i.e., there was a judge who granted the creditor access to the borrower’s assets before requiring the borrower to be sued for repayment of the debt;

Rav Ḥanin, son of Rav Yevaya, removed him,

as Rav Ḥanin removed the creditor from the borrower’s assets.

Rava said: Who could be wise enough to do such a thing,

who could have the authority to remove the creditor from the borrower’s assets,

if not

the one who did so,

Rav Ḥanin, son of Rav Yevaya!

He held -

Rava held -

“A person’s assets become his guarantors,”

as it is stated [Proverbs 22:27]: “If you have nothing with which to pay, why should he [the creditor] take your bed from beneath you?”

Therefore, the assets must be judged according to the law of a guarantor.

And we learned

in our Mishna:

“One who lends money to another through a guarantor” -

“He may not collect from the guarantor,” and it is established for us

that the meaning of the Mishna is:

“He may not sue the guarantor first.”

Since a person’s assets are like his guarantors, the creditor is therefore not permitted to collect his debt from the borrower’s assets before suing the borrower to pay, because perhaps the borrower has money with which to pay the debt. The later authorities raised an objection [Avnei Ezer, Lender and Borrower 19:2], for our sugya indicates that even with regard to encumbered assets the rule applies that one does not collect from a guarantor first. In the novellae of Rabbi Aryeh Leib [part I, 58:7], he answered on the basis of an inference he made from the Rambam, that there are two distinct laws: (a) one may not sue the guarantor first; and (b) one may not collect from the guarantor’s assets unless the borrower has no assets. The law that one may not sue the guarantor first is because the principal obligation rests upon the borrower; therefore, one cannot sue the guarantor first. The law that one may not collect from the guarantor’s assets unless the borrower has no assets is because the guarantor assumed the obligation on that condition. Accordingly, he explained that with regard to encumbered assets there is only the law that one may not sue the guarantor first, because the rationale that the guarantor did not undertake to have collection made from encumbered assets first does not apply. Thus, if the borrower retained inferior land and sold the medium-quality land, the rule that one may not sue the guarantor first does not apply, since the creditor’s primary claim is upon the medium-quality land. Nor does the rule that one may not collect from a guarantor first apply, since the creditor’s principal intention was directed toward the assets, and at the time of the loan the borrower agreed to encumber all his assets. Were it not for the Sages’ enactment for the benefit of purchasers, requiring collection first from unencumbered assets, the creditor could collect from the encumbered medium-quality land.

The Gemara relates an incident involving

a certain guarantor for orphans

whose father had borrowed money during his lifetime, and this person had become a guarantor for him to the creditor;

who paid it -

he paid

the creditor

after the borrower’s death,

before informing

the

orphans

that they should pay the debt. After he paid the creditor from his own funds, he came to claim the money from them.

Rav Pappa said:

After the guarantor paid the debt, he cannot claim from the orphans what he paid, because the orphans became liable to the guarantor for a debt that was an oral loan, for there is no document recording the debt that they owe the guarantor, and their assets did not become encumbered for repayment of the debt. The obligation to pay an oral loan exists only by virtue of

the mitzva of repaying a creditor

— a mitzva.

And orphans

under the age of thirteen

are not capable

of performing a mitzva;

they are not obligated in mitzvot. They cannot be compelled to repay the debt. Only once they mature can he bring a legal claim against them. Rashi in Sanhedrin [2a], however, disputes this and maintains that one who does not repay a loan does not transgress the prohibition of robbery, because a loan is given for expenditure. Rather, Rashi holds [Ketubot 86a] that it is derived from the verse [Leviticus 19:36], “A just hin”: Your “yes” should be just, and your “no” should be just. Ramban and Ritva below [175b] disputed Rashi’s view and explained that the verse “A just hin” teaches that one should not say one thing with his mouth and another with his heart. Since at the time of the debt his mouth and heart were in agreement that he would repay the debt, the deficiency of “your yes should be just” does not apply. They explained instead that the source of the mitzva to repay a debt is the verse: “And the man to whom you are indebted shall bring out to you the pledge outside” [Deuteronomy 24:11]. The Shita Mekubetzet [Ketubot 86a], citing the Ra’ah, likewise wrote that it is derived from the expression “he shall bring out to you,” from which we learn that it is incumbent upon him to bring it out. It further wrote there that all this applies according to the one who says that a lien is not of Torah origin. But according to the one who says that a lien is of Torah origin, he does not derive from the verse that there is a mitzva to repay the debt, because according to his view the borrower is obligated to repay even without a mitzva. Rather, he derives from the verse that a creditor’s legal claim is to inferior land. Ramban [below, 175b] and Ritva [Kiddushin 13b] likewise wrote that the law that repaying a creditor is a mitzva depends upon the dispute over whether a lien is of Torah origin. According to the one who says that a lien is of Torah origin, the obligation to repay stems from the creditor’s monetary right arising from the debt. This requires explanation with regard to those early authorities who maintain that Rav Pappa holds that a lien is of Torah origin: Why does he maintain that repaying a creditor is only a mitzva? The Raavad, in the Shita Mekubetzet, wrote that in fact Rav Pappa holds that a lien is not of Torah origin, and therefore he stated that repayment of a creditor is only a mitzva. The Nimukei Yosef wrote likewise. The Tosafot of the Rosh in Ketubot [86a], however, does not agree. He asked: Since a lien is of Torah origin, why do we not collect the debt from the assets of minor orphans? Their father’s assets became encumbered to the creditor, and although the orphans are not obligated in mitzvot, nevertheless, since the creditor’s lien lies before him, why should he not take it? He answered that since the assets are now in the orphans’ possession, and they are not obligated in mitzvot, the debt is not collected from their assets. The assets are guarantors, and since the borrower is not obligated, the guarantor likewise does not become obligated. The Ramah likewise wrote that Rav Pappa holds that a lien is of Torah origin, and nevertheless, if there is no mitzva to repay, there is no lien upon the assets. He further wrote that all this applies to an oral loan. With regard to a documented loan, where the borrower encumbered himself, there is no distinction between adult and minor orphans, and the creditor may collect from the assets. Rabbeinu Gershom, Rabbi Yosef Migash, and the aliyot of Rabbeinu Yonah likewise maintain that with regard to a documented loan, everyone agrees that one collects from orphans by virtue of the lien upon the assets enacted by the Sages. The entire dispute concerns an oral loan, for which the Sages enacted collection from heirs so that the door would not be closed before borrowers: Are minor orphans also included in this obligation or not? This also appears to be the view of Rashbam, though not because there is a rabbinic lien, but because a documented loan is a monetary debt that must be repaid. Tosafot, however, disputes this and maintains that Rav Pappa was speaking even of a documented loan. The Einayim LaMishpat cited the question of the Pnei Yehoshua in Ketubot concerning those views that maintain that the case here involves a documented loan, and likewise concerning those views that maintain that Rav Pappa holds that a lien is of Torah origin: Why, according to Rav Pappa, do we not collect from the debtor’s assets when there is no mitzva incumbent upon him to repay? In what way is he different from purchasers, who are not commanded to repay the debt and nevertheless collection is made from them? He answered that collection from assets in the purchasers’ possession is made because the assets are encumbered for fulfillment of the debtor’s mitzva. But when he is not commanded to repay, the assets too are not encumbered. He further answered that the purchasers acted improperly by purchasing property subject to the debtor’s lien, and therefore collection is made from them, unlike the orphans. The Kuntres HaShiurim [section 568] likewise proved this from the fact that a debt is inherited. This indicates that it involves a monetary debt, for if it were merely a mitzva, the law of inheritance would not apply to it, since inheritance applies only to a monetary right. In a responsum, the Rashba [part III, section 56] wrote that one does not descend to the borrower’s assets in order to collect the debt; rather, he is compelled until he fulfills his mitzva. This likewise appears from the Tosafot Rid [Ketubot 86a]. Ramban below [175b] and Ritva in Kiddushin [13b], however, wrote that even according to the one who says that a lien is not of Torah origin, the court descends to the borrower’s assets to collect the debt by virtue of coercion to fulfill mitzvot: Rather than compel him through his body, compel him through his property. The Shaarei Yosher [there] asked: Since the borrower does not pay willingly, how does the creditor acquire the money? One cannot say that he acquires it by virtue of the court’s power to declare property ownerless, for if so, this is not repayment of a debt, but ownerless property that has come into his possession. He therefore proved that even according to the one who says that a lien is not of Torah origin, the creditor has a monetary right against the owner of the assets and may consequently take his assets against his will. The reason one cannot take another person’s assets against his will is the control exercised by their owner. If the creditor has a proprietary right in the borrower’s person, such that he may acquire his money, he can acquire it against the borrower’s will. The Netivot HaMishpat [there] disputes this and maintains that every person is commanded to prevent another from committing a prohibition. He proved this from the case of an eved nirtza, whom his master may strike in order to prevent him from committing the prohibition involving a maidservant. The Yam Shel Shlomo [Bava Kamma, chapter 3, section 5] wrote in accordance with the Netivot HaMishpat. The Meshovev rejected the words of the Netivot, arguing that every person is commanded only to prevent another from committing a prohibition, whereas compelling a person to fulfill a positive mitzva requires specifically a court. Coercion to fulfill a mitzva differs from coercion to prevent a prohibition: When compelling a person to fulfill a mitzva, we compel and strike him until his soul departs, whereas to prevent him from committing a prohibition, it is permitted only to strike him. Regarding the distinction made by the Meshovev Netivot between coercion to fulfill a mitzva and coercion to prevent a prohibition, see the Ran in Ḥullin [132b, s.v. “In what case”], who maintains that even for a negative prohibition one compels him until his soul departs. Rabbeinu Yonah [cited in the Shita Mekubetzet, Ketubot 86a] maintains that even for a positive mitzva one does not compel him until his soul literally departs, but only weakens him. The Or Sameaḥ [Rebels 4:3] wrote that striking someone in order to make him fulfill a positive mitzva does not require a court. Only in a matter that must be performed willingly, such as a get, where a coerced get is ineffective, is coercion by a court required. Likewise, according to the one who says that mitzvot require intention, even for mitzvot a court must compel him, because only through their coercion is his act considered voluntary. As explained by Ritva [Rosh Hashana 28a, s.v. “They sent”], coercion by a court is considered voluntary, since it is a mitzva to heed the words of the Sages. The Kuntres HaShiurim [part II, 23:6] wrote that for mitzvot whose primary purpose is the result of the act, intention for the mitzva is not required. Intention is required only when the mitzva is the act itself; then intention is needed for the act to be considered an act of mitzva. In repaying a creditor, intention is unnecessary, since the purpose of the mitzva is that the creditor receive his money. The responsa of the Maharit [part I, 127] likewise wrote that guardians may determine that charity be taken from orphans in order to protect them, even though the orphans do not give it willingly, since the poor benefit from the orphans’ assets and this is to the orphans’ advantage. He proved this from the incident above [8b], where Rava compelled Rabbi Zeira and took charity from him. Thus, even through coercion a positive mitzva is fulfilled, because with charity the principal matter is that the poor person benefit. The Minḥat Ḥinukh [mitzva 228, letter 4] asked, according to the view of the Sefer HaḤinukh that anyone who does not repay his debt transgresses the negative commandment “You shall not rob,” as held by the Mordekhai [Ketubot, section 222] and the Ridbaz in a responsum [part II, section 610], and that the mitzva of repaying a creditor is a negative mitzva because of robbery: Why does the Gemara need to say that he is compelled because of the positive mitzva? Even without the positive mitzva, he should be compelled because of the negative mitzva. The Shaarei Ḥayyim [Kiddushin, section 16] answered that only the one who says that a lien is of Torah origin maintains that he transgresses a negative commandment. Since the lien is a partial acquisition, when he does not pay he transgresses the prohibition of robbery. But according to Rav Pappa, who holds that a lien is not of Torah origin, the creditor has no monetary right in the borrower’s assets, and the prohibition of robbery does not apply. He further answered that the early authorities disputed whether one compels a person for a negative commandment. The Ran in Ḥullin [132b] maintains that one does compel him, whereas it is precise from Shaarei Teshuva [gate 3, section 11] that one compels only for a positive mitzva. According to Rabbeinu Yonah in Shaarei Teshuva, one may say that even according to the one who says that a lien is of Torah origin, although there is a negative commandment when he does not repay the debt, one does not compel a person for a negative commandment. The Divrei Yeḥezkel [section 51, letter 2] answered that the negative commandment applies only when he has no intention of paying the debt. But if he intends to pay at a later time, he transgresses only a positive commandment. The Kuntres HaShiurim [Ketubot 86a] answered that he does not transgress the negative commandment as long as he is able to repay the debt.

And Rav Huna son of Rav Yehoshua said:

the orphans are subject to the mitzva of repaying a debt, but for another reason the guarantor does not collect the debt from them until they come of age and know how to present claims and clarify their case, because

perhaps he had received collateral:

perhaps their father gave the creditor money, or silver and gold as collateral, at the time of his death, in order to release the guarantor from his obligation, but the creditor did not have time to take the document from the borrower. And we challenge this: Since for both reasons the guarantor does not collect from the orphans until they come of age,