Bava Batra 175b (קעה:) — the Talmud in English

He brought it against him

the lender brought a document

in his own handwriting

of the borrower, without the signatures of witnesses,

that he owed him

money,

the lender collects

from

unencumbered property .

He may not collect from encumbered property, but only when the loan is recorded in a document signed by witnesses. For through the document and the witnesses together, the matter becomes public knowledge, and for that reason the borrower’s property becomes encumbered for repayment of the debt. Since the purchasers who buy the borrower’s land after the loan has become public knowledge have harmed themselves by failing to investigate the matter and failing to ensure that land would remain in the borrower’s possession for repayment of the debt, this is unlike a document without witnesses, which does not become public knowledge and has the status of an oral loan .

A guarantor who appears after the completion of the documents,

who wrote beneath the signatures of the witnesses on the loan document: “I, so-and-so son of so-and-so, am guarantor for the borrower.”

In this manner

the lender collects

from

the guarantor’s unencumbered property,

since the witnesses did not sign their names beside the guarantee, and the guarantee therefore has the status of an oral loan.

An incident occurred and there came before Rabbi Yishmael

a guarantor who wrote his guarantee after the witnesses had signed,

and

Rabbi Yishmael

said:

the lender

collects from the guarantor’s unencumbered property,

as we learned above.

Ben Nanas said to him,

to Rabbi Yishmael:

He collects neither from encumbered property nor from unencumbered property,

for in Ben Nanas’s view, anyone who became a guarantor only after the loan had already been given does not have the status of a guarantor, because the lender did not lend to the borrower on the basis of the guarantor’s reliability and assurance.

He said to him,

Rabbi Yishmael said to Ben Nanas:

Why

is he not considered a guarantor, and why can the lender not collect from this guarantor even from unencumbered property?

He said to him,

Ben Nanas said to Rabbi Yishmael: Here is an example of the matter:

Behold,

a man

who is strangling another in the marketplace,

forcefully demanding that he pay his debt ,

and his fellow came upon him and said to him,

to the aggressor,

“Release him, and I will give you [the money],”

and the aggressor released him: If the aggressor later comes to demand the debt from the fellow who promised to pay,

the fellow is exempt

from giving him anything.

And why is he exempt? Because

he did not lend to him on the basis of his reliability

because

he lent to him;

that is, the lender did not lend to his fellow initially because he relied on this person, nor was the debt contingent upon his promise. Therefore, he cannot subsequently demand payment from him.

The same law applies to a guarantor who signs after the loan document has already been signed: he is exempt, since the lender had already lent to the borrower without the guarantor.

But which guarantor is liable

to pay?

If the guarantor said to the lender before the loan was given:

“Lend to him, and I will give you [the money],”

this is a guarantor who is

liable

to pay,

since on the basis of

his

reliability he lent to him;

because the lender trusted the guarantor and relied on his responsibility, he lent to the borrower.

But Rabbi Yishmael disagrees with Ben Nanas even in the case of one who is strangling a debtor, because in his view, even one who became a guarantor after the loan was given is a guarantor and becomes obligated to the lender. However, if he became a guarantor after the loan, he becomes obligated only if he undertook the obligation through an act of acquisition, whereas at the time of the loan, the guarantor becomes obligated even without an act of acquisition.

And Rabbi Yishmael said: One who wishes to become wise

—to acquire wisdom and knowledge and sharpen his intellect—

should engage

in the laws of monetary matters, for you have no discipline

—corner—

in the Torah greater than they,

because of the abundance of laws and reasoning in the laws of monetary matters,

and they are like a flowing spring

of intellectual distinctions and judgment .

And one who wishes to engage in the laws of monetary matters

should attend upon Shimon ben Nanas

and study under him.

Gemara:

Ulla said: By Torah law

—according to the Torah—

both a loan documented in a document and an oral loan

are collected from encumbered property.

What is the reason?

Since, according to Ulla,

the encumbrance

—the law that the borrower’s property is encumbered to the lender, so that even if he sells or gives it away, the lender can collect his debt from it—is a law

of Torah origin,

as it is stated [Deuteronomy 24:11]: “Then the man to whom you lend shall bring the pledge outside to you” .

But if so, for what reason did they say

the Sages:

An oral loan is collected only from unencumbered property?

Because of the loss to purchasers,

since an oral loan does not become public knowledge, and perhaps the purchasers will not know of it and will buy property from the borrower, only to suffer a loss when the lender collects it for repayment of the debt.

And we challenge this:

If so, a loan documented in a document should also be so

—the Sages should have enacted that the lender may not collect from the borrower’s property, so that the purchasers would not suffer a loss.

And we answer:

There,

in the case of a loan documented in a document, with witnesses who signed the document, the loan becomes public knowledge. If the purchasers bought from the borrower and did not leave him property with which to repay the loan,

they themselves are the ones who

harmed themselves;

they are the ones who caused their own loss.

And Rabba said: By Torah law

—according to the Torah—

both a loan documented in a document and an oral loan

are collected only from unencumbered property.

What is the reason?

The encumbrance

—the law that the borrower’s property is encumbered to the lender—

is not of Torah origin

—it is not prescribed by the Torah . And the verse, “He shall bring the pledge to you,” speaks of taking collateral at the time of repayment, not at the time of the loan .