Bava Batra 174b — the Talmud in English

What is the practical difference between them?

What difference is there in practice between the reasons, as to why the guarantor does not collect from the orphans until they grow up?

And we answer:

There is a difference between them

There is a difference between the reasons

when the debtor admits

at the time of his death that he had not repaid the debt,

alternatively,

there is another difference in the case

that they excommunicated him

that the court excommunicated the father because he did not wish to repay the debt

and he died under his excommunication,

for in these cases there is no concern that perhaps the father gave the creditor collateral for the debt; therefore, according to Rav Huna, he collects the debt from the lands that the orphans received as an inheritance, because it is clear that the father did not pay the debt. But according to Rav Pappa, he does not collect from them until they grow up, since they are not capable of performing the mitzva of repaying the debt.

They sent from there

from the Land of Israel to Babylonia: If

they excommunicated him [

they excommunicated him] for a debt that he did not pay,

and he died under his excommunication,

it is known that he did not repay the debt, and this is similar to one who admitted before his death that he had not repaid the debt. They ruled

the halakha is like Rav Huna son of Rav Yehoshua

that the debt is collected from the orphans, since it is clear that the father did not pay, and we do not say that the orphans are not capable of performing the mitzva of repaying a debt.

He raises an objection

from a beraita against Rav Pappa, who maintains that one does not collect from orphans even when it is clear that their father did not pay.

For we learned in a beraita:

A guarantor who had a promissory note

that he received from the creditor

emerging from beneath his hand

and he is suing the borrower’s heirs, saying to them: “I repaid your father’s debt, and the note in my possession proves this, since the creditor returned it to me”—

he does not collect

from the borrower’s heirs until they grow up and stand with him for judgment; then he takes an oath that they owe him, and collects from them, according to the law governing one who comes to collect from the property of orphans.

And if it is written in it

in the promissory note:

“I have received from you,”

meaning that the creditor signed that he received payment of the debt from the guarantor—

he collects

the guarantor from the orphans.

And we inquire about it:

Granted, according to Rav Huna son of Rav Yehoshua—

you can find it

we can find a case in which the guarantor collects from the orphans, for example:

when the debtor admits; but according to Rav Pappa, it is difficult!

For according to his view, the guarantor does not collect from the orphans at all, even when it is clear that their father owed the money, since they are not obligated in the mitzva of repaying a debt.

And we answer:

That case is different,

because

for this purpose

for this

he exerted himself

the creditor

and wrote for him

for the guarantor

“I have received,”

so that the note in the guarantor’s possession would be considered the guarantor’s own promissory note; and when he has a note for the debt, the borrower’s property is liened to the debt, and repayment of the debt is not merely a mitzva but a complete debt, and the orphans are obligated to repay it against their will. In this case Rav Pappa agrees that one collects from the orphans.

There was an incident involving

a certain guarantor for a non-Jew

A certain man was guarantor for his Israelite borrower who borrowed from a non-Jew, and the borrower died,

who repaid the non-Jew before he sued the orphans,

and the guarantor repaid the loan to the non-Jew before suing the borrower’s heirs for the debt.

Rav Mordekhai said to Rav Ashi: This is what Avimi of Hagrunya said in the name of Rava: Even according to the one who says

that the guarantor does not collect the debt from the orphans until they grow up and know how to argue and clarify their case, because

we are concerned about collateral,

that perhaps their father gave the creditor collateral for the debt—

this statement applies

this concern exists only when the creditor is

an Israelite,

since according to Israelite law the creditor does not collect from the guarantor first, and it is the borrower’s responsibility to repay the creditor; therefore, we are concerned that perhaps before his death the borrower gave the creditor collateral for the debt.

But

when the creditor is

a non-Jew,

the borrower does not give the non-Jewish creditor collateral for the debt,

since

the borrower knows

that he pursues the guarantor

that the non-Jew will return and collect from the guarantor—therefore, with a non-Jewish creditor

we are not concerned about collateral

we do not fear that the borrower gave him collateral for the debt before his death.

He said to him

Rav Ashi:

On the contrary,

the opposite:

even according to the one who says: We are not concerned about collateral,

that perhaps their father gave the creditor collateral for the debt,

this statement applies

only when the creditor is

an Israelite; but

when the creditor is

non-Jews, since according to their law they pursue the guarantor,

since according to the laws of the non-Jews they collect first from the guarantor,

if he had not given him collateral originally,

if the borrower had not deposited collateral with the non-Jewish creditor for the debt before the guarantor became obligated, the guarantor

would not have accepted him,

would not have taken upon himself the guarantee for the loan, since he knew that the non-Jew would collect from him first.

And since this is so, here we are concerned that the father, the borrower, deposited collateral for the debt with the non-Jewish creditor; and the guarantor who paid the debt to the creditor does not collect from the borrower’s heirs until they grow up and know how to argue and clarify their case in court.

We learned in the Mishna:

And likewise Rabban Shimon ben Gamliel would say: The guarantor for a woman’s marriage settlement

one who accepted upon himself a guarantee to pay a woman the marriage settlement that her husband wrote for her, while her husband wishes to divorce her and the guarantor must pay her marriage settlement. The husband must vow that he will derive no benefit from her, so that they will not conspire against the guarantor: that her husband will divorce her so that she will collect the marriage settlement from the guarantor, and afterward he will take his wife back.

There was an incident involving a man named

Moshe bar Atzri, who was the guarantor for the marriage settlement of his daughter-in-law,

he was guarantor for the marriage settlement of his daughter-in-law, who was the wife of

Rav Huna, his son

his son.

He was a Torah scholar and the matter was pressing for him,

Rav Huna was a Torah scholar and was pressed for money, and his father did not assist him financially.

Abaye said: Is there no one who will go and give him advice

Is there no person who will go and give advice

to Rav Huna, that he should divorce his wife

that he should divorce his wife,

and she should go and collect her marriage settlement from his father,

and she should go and collect her marriage settlement from his father, the guarantor,

and afterward he should take her back,

and afterward he should take her back and marry her again, so that he would have the money of the marriage settlement in his possession?

Rava said to him: But

the guarantor pays the marriage settlement only if

he makes her vow

her husband

that she will derive no benefit

after he divorces her, thus

we learned

in the Mishna. If so, Rav Huna would have to make his wife vow that she would derive no benefit after he divorced her if he wanted his father, the guarantor, to pay the marriage settlement; and how could Rav Huna take her back afterward?!

Abaye said to him: Is it so that everyone who divorces—

divorces in court?

Does everyone who divorces a woman divorce her in court? If so, Rav Huna could divorce her without appearing before the court, and he would not make her vow that she would derive no benefit; then he could take her back after she received the marriage-settlement money from his father, the guarantor.

In the end, the matter became revealed

it became clear

that he was a priest

Rav Huna; and if he divorced his wife, he could not take her back even if he had not made her vow, because a divorced woman is forbidden to a priest.

Abaye said: This is what people say,

this is what people say:

Poverty pursues the poor,

poverty follows the poor.

And we object:

Did Abaye say this?

Did Abaye really advise Rav Huna to use this stratagem against his father?

But Abaye said

in the chapter “There Are Those Who Inherit” [above, 137a]:

Who is a wicked cunning person

one who intervenes in a quarrel that does not concern him and gives advice that causes others a loss?

This is one who gives advice

to one who received property from a person who gave him his property as a gift and stipulated with him that after the recipient’s death the property would pass to a certain person, and he gave the recipient advice

to sell

the property

to others,

in accordance with Rabban Shimon ben Gamliel,

who maintains that if the first recipient sold the property, what he did is effective, and the property that was sold does not pass to the designated person after the recipient dies; only the property still in his possession at the time of his death passes to that person.

And had he not given him this advice to sell the property, the recipient would not have sold it, and it would have passed to the designated person; through his advice he caused that person to suffer a loss.

And we answer: The advice Abaye gave to cause the father, the guarantor, to suffer a loss for the sake of

his son

is different; it is permitted to give this advice, since he is not causing the inheritance to pass from the one to whom it is due, for the son inherits his father.

And a Torah scholar

and also the fact that the advice was for a Torah scholar

is different

is different, since it is proper to intervene and assist a Torah scholar who is pressed for money.

And we object: How could that advice given by Abaye have been effective?

But he is a guarantor

the father,

and we hold

below, that

a guarantor for a marriage settlement is not liened,

but he becomes a guarantor only for the sake of honor and the mitzva.

And we answer: He was

a contractor-guarantor

the father was not an ordinary guarantor, but a contractor-guarantor, and a contractor-guarantor is liened for payment of the marriage settlement.

And we inquire about it: This answer, that the father was a contractor-guarantor,

is satisfactory

is resolved only

according to the one who says

that a

contractor-guarantor for a marriage settlement, even though the husband has no property

at the time of the marriage, nevertheless

is liened—

properly,

it is properly resolved that the father became liened to pay the marriage settlement even though the husband had no property with which to pay it.

But according to the one who says

who maintains that only

if he has

the husband has property when he undertakes the marriage settlement, then

he becomes liened

the guarantor for payment of the marriage settlement, but

if he does not have

the husband has property,

he does not become liened—

what can be said?

For Rav Huna had no property, and according to this view the father, the guarantor, did not become liened in this manner to pay the marriage settlement?

And we answer:

If you wish, say:

at the time the father, the guarantor, undertook the marriage settlement,

he did have

Rav Huna had property, and he resolved to undertake the obligation and become liened as a guarantor because he thought he would not suffer a loss,

and they were ravaged

and afterward Rav Huna’s property was ravaged.

And if you wish, say: A father in relation to his son makes himself liened,

a father in relation to his son certainly makes himself liable as a guarantor even when his son has no property.

And where do we find that the amoraim disputed with regard to a contractor-guarantor whether he becomes liable to guarantee the marriage settlement when the husband has no property with which to pay the marriage settlement or not?

For it was stated:

a.

A guarantor for a marriage settlement

who is not a contractor-guarantor—

everyone agrees that he does not become liened,

since there are two reasons to say that he does not become liened: (a) he was not a contractor-guarantor in the giving of the money; (b) he intended only to perform a mitzva, so that the woman would consent to marry, and he did not cause her a loss by this. Therefore, everyone agrees that he did not intend to become liened for her marriage settlement.

b. One who became

a contractor-guarantor for a debt

for a loan in reliance on his undertaking, whereby the creditor suffered a monetary loss—

everyone agrees that he becomes liened,

since there are two reasons to say that he undertook the obligation: (a) he was a contractor-guarantor in the giving of the money; (b) the creditor suffered a monetary loss on his account. Therefore, everyone agrees that he intended to become liened for the marriage settlement.

c. But

a contractor-guarantor for a marriage settlement,

although the woman did not suffer a monetary loss on his account, on the other hand there is an advantage in the value of his undertaking, since he became a “contractor-guarantor.”

And

likewise

a guarantor for a debt,

whose undertaking is inferior, since he did not become a “contractor-guarantor” but only a “guarantor,” while on the other hand one can say that he intended to become liened, since the creditor suffered a monetary loss on his account.

In these two cases

they dispute

the amoraim:

One master holds: If the borrower has property

at the time he became a guarantor,

he becomes liened

and resolved to undertake the guarantee because he thought he would not suffer a loss. But

if he does not have

the borrower has property,

he does not become liened

the guarantor, since there are not two reasons for liability; he is not comparable to a contractor-guarantor for a debt, and he intends to undertake the obligation only in a case in which he thinks he will not suffer a loss.

And one master holds: Whether he has

the borrower has property when he becomes a guarantor

or whether he does not have

the borrower has property—

he becomes liened

the guarantor, since there is at least one reason for liability.

And we conclude:

And the halakha is: Every

guarantor,

whether he has

the borrower has property

or whether he does not have—

he becomes liened

the guarantor, since there is one reason for liability.

Except

with the exception

of a guarantor for a marriage settlement, for even though he has

property

the husband

he does not become liened.

What is the reason?

Since there are two reasons to say that he does not become liened: (a) he was not a contractor-guarantor in the giving of the money; (b)

he performed only a mitzva

the guarantor, and intended only to perform a mitzva so that the woman would consent to marry,

and she suffered no loss,

she suffered no loss whatsoever on his account, since the woman prefers living with a husband to living alone, and he intended for her benefit.

Rav Huna said: A dangerously ill person who consecrated all his property and said, “A maneh belonging to so-and-so is in my possession,”

that he owes him—is

believed

in his statement, because

there is a presumption that no

person makes a fraudulent collusion

of deceit

against consecrated property.

And if he said that he owed it to so-and-so, he certainly spoke the truth.

Rav Naḥman challenged him: And does a person make a fraudulent scheme

of deceit

against his sons

to give to others and deprive them of their inheritance?

But we have found

that Rav and Shmuel both said: A dying man

a person who is going to die

who said

to his sons

“A maneh belonging to so-and-so is in my possession,”

which I owe him, if

he said

to his sons

“Give

him this money that I owe him” —

they give it,

and if

he did not say, “Give,” —

they do not give,

even though he admitted that he had a maneh belonging to so-and-so in his possession.

Thus,

it is demonstrated from here that

a person is likely

to say that he owes money to others only so that

he not make his sons wealthy,

so that people will not regard him and his sons as wealthy.