Bava Batra 174b (קעד:) — the Talmud in English

What difference is there between them?

What practical difference is there between the reasons 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 he admits the debt

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

alternatively,

there is another difference in a case

where they excommunicated him

where the court excommunicated the father because he refused 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, the creditor collects the debt from the land 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, because they are not capable of performing the mitzva of repaying the debt.

They sent word from there

from Eretz Yisrael to Babylonia: If

they excommunicated him [

they excommunicated him] because of 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 comparable to one who admitted before his death that he had not repaid the debt. They ruled

that the halakha is in accordance with 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 raised 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.

As we learned in a beraita:

A guarantor who had a promissory note

that he received from the creditor

emerging from his possession

and who makes a claim against the borrower’s heirs, saying to them: “I repaid your father’s debt, and the promissory note in my possession proves this, since the creditor returned it to me”—

does not collect

from the borrower’s heirs until they grow up and stand trial with him. He may then take an oath that they owe him and collect from them, in accordance with 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 had received payment of the debt from the guarantor—

he collects

the debt from the orphans.

And we inquire about this:

Granted, according to Rav Huna, son of Rav Yehoshua,

you can find

a circumstance in which the guarantor collects from the orphans, for example:

“when he admits the debt”; but according to Rav Pappa, it is difficult!

For according to his view, the guarantor never collects from the orphans, even if it is clear that their father owed the debt, since they are not obligated in the mitzva of repaying a debt.

And we answer:

That case is different,

because

for this reason

for that purpose

the creditor exerted himself

the creditor

and wrote to him

to the guarantor:

“I have received,”

so that the promissory note in the guarantor’s possession would be considered the guarantor’s own promissory note. When he has a promissory note for the debt, the borrower’s property is liened for the debt, and repayment of the debt is not merely a mitzva but a full monetary obligation. It is incumbent upon the orphans to repay it against their will, and in this case Rav Pappa concedes that one collects from the orphans.

There was an incident involving

a certain guarantor for a gentile

A certain man had guaranteed a Jewish borrower who borrowed from a gentile, and the borrower died,

and he paid the gentile before he sued the orphans,

and the guarantor repaid the loan to the gentile before claiming the debt from the borrower’s heirs, the orphans.

Rav Mordekhai said to Rav Ashi: This is what Avimi of Hagrונya 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 present their claims and clarify their case, because

we are concerned about collateral

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

this applies

this concern exists only when the creditor is

a Jew,

since according to Jewish law the creditor does not collect from the guarantor first, and it is the borrower’s obligation 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 gentile,

the borrower does not give the gentile creditor collateral for the debt,

because

the borrower knows

that he pursues the guarantor

that the gentile will return and collect from the guarantor. Therefore, in the case of a loan from a gentile,

we are not concerned about collateral

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

He said to him,

Rav Ashi said to him:

On the contrary,

the opposite is true:

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 applies

specifically when the creditor is

a Jew; but

when the creditor is

a gentile, since their law is that they pursue the guarantor,

since according to gentile law they collect first from the guarantor,

if he had not initially handed him collateral,

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

would not have accepted him,

would not have undertaken to guarantee the loan, since he knows that the gentile will collect from him first.

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

We learned in the Mishna:

And Rabban Shimon ben Gamliel likewise used to say: A guarantor for a woman’s ketuba

one who undertook to guarantee payment of the ketuba that her husband wrote for her, when her husband wishes to divorce her and the guarantor must pay her ketuba. The husband must vow that he will derive no benefit from her, so that they will not collude against the guarantor: her husband will divorce her so that she can collect her ketuba from the guarantor, and afterward he will take her back.

There was an incident involving a man named

Moshe bar Atzri, who was the guarantor for his daughter-in-law’s ketuba,

he had guaranteed the ketuba of his daughter-in-law, who was the wife of

Rav Huna, his son

his son.

He was a Torah scholar, and circumstances were pressing for him,

Rav Huna was a Torah scholar and was in financial straits, and his father did not provide him with financial assistance.

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

why is there no one 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 ketuba from his father,

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

and afterward he should take her back,

and afterward he could remarry her, thereby retaining the money of the ketuba?

Rava said to him: But

the guarantor pays the ketuba 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, after divorcing her, that she would derive no benefit, if he wanted his father, the guarantor, to pay the ketuba. How then could he take her back afterward?

Abaye said to him: Is it the case 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 a court, and he would not make her vow that she would derive no benefit; he could then take her back after she received the payment of the ketuba from his father, the guarantor.

Ultimately it was revealed

it became clear

that he was a koen

Rav Huna was a koen, and if he divorced his wife he could not take her back, even if he did not make her vow that she would derive no benefit, because a divorced woman is forbidden to a koen.

Abaye said: This is what people mean when they say

this is what people say:

Poverty follows the poor,

poverty pursues the poor.

And we challenge this:

Did Abaye really say this?

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

But Abaye said

in the chapter Yesh Nochalin [above, 137a]:

Who is a wicked, cunning person?

One who involves himself in a dispute that is not his and gives advice that causes others a loss.

This is one who gives advice

to someone who received property from a person who gave him his property as a gift, stipulating that after the recipient’s death the property would pass to a certain individual, 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, his action is effective, and the sold property does not pass to the designated individual after his death; only property still in his possession at the time of his death passes to that individual.

If he had not given him this advice to sell the property, the recipient would not have sold it, and it would have passed to the designated individual. Through his advice, he caused that individual to suffer a loss.

And we answer: The advice Abaye gave to cause the father, the guarantor, a loss on behalf of

his son

is different. It is permitted to give this advice, since he is not causing the inheritance to pass from the person to whom it rightfully belongs, for the son inherits from his father.

And a Torah scholar

and the fact that the advice was given on behalf of a Torah scholar

is different

for it is appropriate to intervene and assist a Torah scholar who is in financial straits.

And we challenge this: How could the advice Abaye gave have been effective?

But he is a guarantor,

the father,

and we hold

as will be stated below, that

a guarantor for a ketuba does not become obligated,

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

And we answer: The guarantor

was a contractual guarantor

the father was not an ordinary guarantor but a contractual guarantor, and a contractual guarantor becomes obligated to pay the ketuba.

And we inquire about this: This answer, that the father was a contractual guarantor,

works

is satisfactory only

according to the one who says

that a

contractual guarantor for a ketuba, even though the husband has no property

at the time of the marriage, nevertheless

becomes obligated—

properly,

it is properly resolved that the father undertook to pay the ketuba even though the husband had no property with which to pay it.

But according to the one who says

that only

if he has

the husband has property at the time he undertakes the obligation of the ketuba, then

he becomes obligated

the guarantor becomes obligated to pay the ketuba; but

if he does not have

the husband has property,

he does not become obligated—

what can be said?

After all, Rav Huna had no property, and according to this view the father did not undertake the obligation in this manner to pay the ketuba.

And we answer:

If you wish, say:

At the time the father undertook the obligation of the ketuba,

he did in fact have

Rav Huna had property, and he resolved to undertake the obligation of surety because he believed that he would not suffer a loss,

but it was subsequently destroyed

Rav Huna’s property was subsequently destroyed.

And if you wish, say: A father, with regard to his son, certainly obligates himself.

With regard to his son, a father certainly undertakes an obligation of surety even when his son has no property.

And where do we find that the amoraim dispute whether a contractual guarantor becomes obligated to guarantee a ketuba when the husband has no property with which to pay the ketuba, or whether he does not?

As it was stated:

a.

A guarantor for a ketuba

who is not a contractual guarantor—

everyone agrees that he does not become obligated,

since there are two reasons to say that he does not become obligated: (a) He is not a contractual guarantor with regard to the transfer of the money. (b) He intended only to perform a mitzva, so that the woman would agree to marry, and he did not cause her a loss by doing so. Therefore, everyone agrees that he did not intend to obligate himself for her ketuba.

b. One who became

a contractual guarantor for a creditor

for a loan on the basis of his undertaking, causing the creditor to suffer a monetary loss—

everyone agrees that he becomes obligated,

since there are two reasons to say that he undertook the obligation: (a) He was a contractual guarantor with regard to the transfer of the money. (b) The creditor suffered a monetary loss on the basis of his word. Therefore, everyone agrees that he intended to obligate himself for the debt.

c. But

a contractual guarantor for a ketuba

although the woman did not suffer a monetary loss on the basis of his word, on the other hand, there is an advantage to the strength of his undertaking, since he became a “contractual guarantor.”

And

likewise,

a guarantor for a creditor

whose undertaking is weaker, since he did not become a “contractual guarantor” but merely a “guarantor,” while, on the other hand, it may be said that he intended to obligate himself, since the creditor suffered a monetary loss on the basis of his word.

In these two cases,

they dispute

the amoraim:

One master maintains: If the borrower has property

at the time he becomes a guarantor—

he becomes obligated

and resolves to undertake the obligation of surety because he believes that he will not suffer a loss. But

if he does not have

the borrower does not have property—

he does not become obligated

the guarantor does not become obligated, since there are not two reasons for the obligation. He is not comparable to a contractual guarantor for a creditor, and he intends to obligate himself only where he believes that he will not suffer a loss.

And one master maintains: Whether he has

the borrower has property at the time he becomes a guarantor

or whether he does not have

the borrower does not have property—

he becomes obligated

the guarantor becomes obligated, since there is at least one reason for the obligation.

And we conclude:

And the halakha is:

Every

guarantor, whether he has

the borrower has property

or whether he does not have—

he becomes obligated

the guarantor becomes obligated, since there is one reason for the obligation.

Except

for

a guarantor for a ketuba, for even though he has

the husband has

property

he does not become obligated.

What is the reason?

Since there are two reasons to say that he does not become obligated: (a) He is not a contractual guarantor with regard to the transfer of the money. (b)

He performed a mitzva

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

and she suffered no loss,

nothing was diminished on her account, since the woman prefers living with a husband to living alone, and he intended what was best for her.

Rav Huna said: If a person on his deathbed consecrated all his property and said, “A maneh belonging to so-and-so is in my possession,”

meaning that he owed it to him—he is

believed

in his statement, because

there is a presumption that no

person engages in a ruse

of deceit

against consecrated property.

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

Rav Naḥman challenges him: a person makes

a fraudulent scheme

against his sons

to give to others and deprive them of their inheritance?

But we find that

Rav and Shmuel both said: a shakhiv mera—

a person who is approaching death—

who said

to his sons,

“I have one hundred dinars with so-and-so,”

that I owe him, if

he said

to his sons,

“Give

him this money that I owe him”—

they give it,

but if

he did not say, “Give,”—

they do not give it,

even though he acknowledged that he had one hundred dinars belonging to so-and-so.

Evidently,

it is demonstrated from here that

a person is likely

to say that he owes money to others merely in order

not to make his sons appear wealthy,

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