Bava Batra 48a (מח.) — the Talmud in English

It is written at the beginning of the Book of Leviticus, with regard to vows to bring an olah: “If his offering is an olah from the cattle, he shall offer an unblemished male. He shall bring it to the entrance of the Tent of Meeting, willingly, before the Lord”—

And we must be precise in the wording of the verse: After the verse has already stated, “he shall offer an unblemished male,” why does it repeat and say

“he shall offer it”?

Rather, this verse

teaches that they compel him

—the court compels him to fulfill the vow he made to bring an olah.

One might have thought

that they may compel him to bring and sacrifice the olah even

against his will?

The verse states,

“willingly.”

How is this so?

They compel him until he says:

“I am willing.”

We have thus learned that when a person says, “I am willing,” even though he says so because of the suffering inflicted upon him, nevertheless, he has resolved in his heart to consecrate and sacrifice the offering. Accordingly, the same applies to one whom they compelled to sell: Once he receives the money for the sale and says to the purchaser who is compelling him, “Go, take possession, and acquire,” he has agreed in his heart to transfer ownership.

But the Gemara discusses this:

Perhaps, there, it is different,

because perhaps the law in that case—where he is compelled to bring an offering—is different,

as it is preferable for him that he achieve atonement

—it is preferable for a person to attain atonement by bringing the olah to fulfill his vow. Therefore, when he ultimately says, “I am willing,” he certainly says it wholeheartedly. But there is no proof from here with regard to an ordinary sale, to say that saying, “I am willing,” after being compelled is considered genuine consent to the sale.

Rather, from the latter clause

of that same beraita one can prove that “if they compelled him and he sold, his sale is valid.” For so we learned in the latter clause:

“And similarly you say with regard to bills of divorce for women”,

in the case of those women with regard to whom the Sages said that the court may compel the husband, by flogging him, to divorce her with a get, such as one afflicted with boils or one with polypus, that they

compel him

to divorce her

until he says,

“I am willing”

to divorce her. For without his saying, “I am willing,” it is impossible to compel him to divorce her against his will, because it is stated in the Torah with regard to a get: “And he shall write her a document of severance, and he shall give it into her hand.” The wording “and he shall give” indicates that he must do so of his own volition.

We have thus learned that if they compel him until, because of his suffering, he says, “I am willing,” this is considered as though he is giving the get of his own volition, because he has resolved in his heart to give her a get. Accordingly, the same applies with regard to a sale: If they force him to sell and he says, “I am willing,” he has resolved in his heart to transfer ownership, and the sale takes effect.

But the Gemara rejects this:

Perhaps there, it is different,

with regard to a get, for only there can one say that ultimately he wishes to give a get, because

it is a mitzva to heed the words of the Sages,

who obligated him to give her a get!

Rather,

the Gemara explains that the law that “if they compelled him and he sold, his sale is valid” is not derived from the verse; rather,

it is a logical inference,

that

because of the coercion, he resolves and transfers ownership!

Despite the suffering, the seller resolves in his heart to transfer ownership, since, in addition to the coercion, he receives money for the sale.

Rav Yehuda raised an objection

to Rav Huna from that which we learned in tractate Gittin [88b]:

A get that is

“forced,”

that was given under compulsion:

If the compulsion was

by

a court of

Israel,

it is a get

fit.

And

if the compulsion was performed

by

a court of

gentiles,

then even though the husband said, “I am willing,” the get is

invalid.

Rav Yehuda understood that this is the meaning of the Mishna: If an Israelite court compelled him because he is legally obligated to divorce her, since he is one of those whom they compel to divorce their wives with a get, the get is valid, because it is a mitzva to heed the words of the Sages. But if a gentile compelled him to give a get to his wife, even if this is a case in which the husband is obligated to divorce her, the get is invalid.

And with a gentile,

if the Israelite court wishes to compel him through gentiles:

They strike him—

the gentiles

and say to him:

“Do what the Israelites tell you.”

Rav Yehuda understood the Mishna to mean that only when the gentile compels him to give a get in the name of an Israelite court does the husband presumably resolve in his heart to divorce her, just as he agrees to divorce her when an Israelite court compels him, because he is obligated to divorce her.

According to Rav Yehuda’s understanding of the Mishna, he wonders about Rav Huna:

Why

when a gentile forced him to divorce her without an instruction from an Israelite court is the get not valid? Even if there is no “mitzva to heed the words of the Sages,” as there is when an Israelite court compels him, nevertheless,

there too, let us say: Because of the coercion, he resolves and divorces her.

And this would be like what Rav Huna said with regard to one whom they compelled and who sold, that his sale is valid.

And the Gemara answers:

This was stated with regard to it,

with regard to that Mishna:

Rav Mesharsheya said: By Torah law, even if

the compulsion was

by a gentile,

the get is

fit.

And for what reason did they say

that a get that was forced

by a gentile is invalid?

So that every woman should not go and place herself in the hands of a gentile,

to flatter him and engage in licentious relations with him,

and thereby extricate herself from her husband’s authority

through him, so that that gentile will compel her husband to give her a get.

Rav Hamnuna raised an objection

to Rav Huna from that which we learned in Gittin [55b]:

A person who

purchased,

acquired land

from a sikarikon

[who is a violent robber, one who kills people over monetary matters; the case is one in which the sikarikon came to kill the landowner, and the owner said to the sikarikon that he would take the land for himself and spare his life],

and the purchaser

returned

and

also

purchased the land

from the landowner, meaning that he paid him for the land, and the landowner wrote him a deed of acquisition for the land,

his purchase is void,

because the landowner wrote this purchaser the deed of acquisition only out of fear of the sikarikon.

And

Rav Huna can be challenged:

Why

is the purchase that the purchaser made from the landowner and paid him for void? Yet according to his statement,

there too, let us say: Because of the coercion

of the sikarikon, and because of the money he receives from the purchaser,

the landowner resolves

and

transfers ownership!?

And we answer:

This was stated with regard to it; Rav said: They taught this only when he said to him,

the landowner to the purchaser:

“Go, take possession, and acquire”

the field that you purchased from the sikarikon;

but

with a deed

[if he wrote him a deed],

the purchaser acquired it

!

But the Gemara still asks:

And according to Shmuel, who said

[above, 47b]

even with a deed

that the landowner wrote to the purchaser from the sikarikon,

he also did not acquire it, what can be said!?

And it answers:

Shmuel concedes where he gave money

[in a case where the purchaser gave money]. That is, he concedes to Rav Huna that if they compelled him and he sold, his sale is valid.

And we ask:

And according to Rav Bibi, who concludes with regard to it

[above, 47b]

in the name of Rav Naḥman:

A robber who produces evidence through witnesses or a deed of sale that the robbed party sold the land to him,

he has no claim to the land,

as the field is not placed in his possession, but

he is entitled to the money

from the robbed party, who must return it to the robber, since he gave him money for the sale—

what can be said!?

It is proven that if they compelled him and he sold, his sale is not valid; for if it were otherwise, he would have a claim even to the land if he gave money.

And we answer: What

Rav Bibi said is merely a statement,

as he said it in the name of others; it is neither a Mishna nor a beraita.

And Rav Huna does not accept a mere statement!

Rava said: The halakha is: If they compelled him and he sold, his sale is valid.

Provided that he says, “I am willing.”

And for what reason did the Sages say

that with regard to

a loan documented in a document,

the lender

collects from the borrower’s encumbered property

?

So as not to close the door in the face of borrowers,

for if lenders could not ensure repayment of their loans, they would not be willing to lend. Therefore, the Sages encumbered the borrower’s property for them, so that even if he sold or gave it away, the lender could collect it for repayment of his debt.

And we challenge this:

If so, an oral loan also

—the Sages should have encumbered the borrower’s property to the lender, so as not to close the door in the face of borrowers.

And we answer:

There,

in the case of an oral loan,

it has no publicity

—it is not public knowledge. If the Sages were to encumber the borrower’s property to the lender, the purchasers would suffer a loss because they would not know to beware of buying the borrower’s property. This is unlike a loan documented in a document, which becomes public knowledge; if the purchasers bought from the borrower and did not leave him property with which to repay the loan, they harmed themselves.

And we challenge this:

And did Rabba really say this,

that the law of encumbering the borrower’s property to the lender is not a law of Torah origin?

But

it was stated above [124b] that a halakha was sent from Eretz Yisrael: The firstborn receives a double portion of the loans that they inherited from their father. Concerning this,

Rabba said

in explanation that only if they

collected land

in repayment of the loan debt

does he have

—the firstborn has—a double portion of it. But if they

collected

from the borrower

money

in repayment of the debt,

he does not have

—the firstborn does not have—a double portion of it.

The reason that the firstborn receives a double portion when land was collected is that the firstborn does not inherit the birthright portion from property that the father was fit to receive after his death, but only from property that was in the father’s possession at the time of his death. The land collected from the borrower for the debt had already been encumbered for repayment of the loan from the beginning of the loan, while the father was still alive, and therefore it was considered to be in his father’s possession.

It follows that by Torah law a debt encumbrance takes effect upon the borrower’s land.

And if you would say: Reverse it:

the traditions should be reversed, and the statement

of Rabba attributed to Ulla and that of Ulla to Rabba,

so that according to Rabba the encumbrance of property is of Torah origin, whereas according to Ulla it is not of Torah origin. In this way, Rabba’s statement would accord with what he said above, that by Torah law the borrower’s property is encumbered to the lender.

This cannot be explained that way, because

Ulla said: By Torah law

—according to the Torah—

the creditor’s law

is that he repays

with inferior land,

the lowest-quality land, as it is stated [Deuteronomy 24:11]: “Then the man to whom you lend shall bring the pledge outside to you.” Presumably, the borrower brings out the least valuable of his possessions; from this they also learned with regard to land that it is sufficient for him to pay with inferior land . This indicates that Ulla holds that the encumbrance of property is of Torah origin ], and this is not Rabba’s view.

Rather,

Rava

holds that the lien on the borrower’s property is not from the Torah, and what he said earlier was only

the rationale of the people of the West,

that is, he came only to explain the rationale of the people of Eretz Yisrael, who said that the firstborn inherits a double portion of his father’s loan. He explained their statement according to their own view: If land was collected in payment of the debt, the firstborn receives a double portion, since the land was encumbered to their father during his lifetime. But if money was collected, even according to their view he does not receive a double portion, since the money was not in the father’s possession at the time of his death, and the firstborn does not inherit the firstborn’s portion from property that the father was destined to receive after his death, but only from property that was in the father’s possession at the time of his death.

However,

he does not hold this way;

he himself does not hold so. In his opinion, according to Torah law, the borrower’s land is not encumbered to the lender. Therefore, in his opinion, the firstborn does not take a double portion from his father’s loan, whether land was collected in payment of the debt or money was collected.

Rav and Shmuel both said: An oral loan —

is collected neither from heirs nor from purchasers

but only from unencumbered property, which is not in the possession of an heir or a purchaser.

What is the reason?

For in their view,

the lien —

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

is not from the Torah —

it is not of Torah origin.

Only in the case of a loan documented in a promissory note, which publicizes the existence of the loan, did the Sages impose a lien on the borrower’s property; therefore, the lender collects from encumbered property, so that the door will not be closed בפני borrowers.

Rabbi Yohanan and Rabbi Shimon ben Lakish both said: An oral loan —

is collected

by the lender collecting his debt

both from heirs and from purchasers

who purchased from the borrower after he borrowed.

What is the reason?

For in their view,

the lien is from the Torah,

and according to Torah law, at the time of the loan the borrower’s property became encumbered to the lender, even when he borrowed without a promissory note and without publicizing the loan.

And we challenge Rav and Shmuel:

Meitivei

from what we learned:

One who digs a pit in the public domain and an ox fell upon him

upon the one who dug the pit

and killed him —

the owner of the ox is exempt —

the owner of the ox —

and furthermore, if the ox died —

the heirs of the owner of the pit

who died

are liable to pay the value of the ox to its owner.

For one who digs a pit in the public domain has committed a prohibited act and is liable for the damage he causes to animals that fall into the pit. Therefore, if an ox fell there, the owner of the ox is exempt, since he is not at fault, while the owner of the pit is liable to pay for the damage caused by the ox.

This debt, which the owner of the pit is liable to pay as the value of the ox to its owner, is not a debt recorded in a promissory note; rather, it is like an oral loan. Nevertheless, his heirs must pay the debt. This indicates that an oral loan is collected from heirs, which is difficult for Rav and Shmuel, who maintain that an oral debt is collected neither from heirs nor from purchasers.

Rabbi Ela said in the name of Rav:

What we learned, that the heirs of the owner of the pit must pay the value of the ox to its owner, refers to a case in which

the owner of the pit stood

the owner of the pit

before the court

and incurred liability in court. A court ruling has the force of a promissory note even if it was not written in a document. In such a case, Rav and Shmuel agree that the liable person’s property becomes encumbered, and the debt can be collected even from the liable person’s heirs and from purchasers.

And we challenge this: How can the beraita that obligates the heirs of the owner of the pit to pay his debt be understood as referring to a case in which the owner of the pit incurred liability in court,

when it says, “and it killed him”?

The beraita is speaking of a case in which the owner of the pit died from the ox that fell upon him, and it would then be impossible to bring him to court.

Rav Adda bar Ahava said:

What we learned, that the ox killed him, does not mean that he died immediately; rather,

it made him

the ox

mortally wounded,

as the ox injured him in such a way that he died from those injuries later, and he stood trial before his soul departed.

And we challenge this:

But Rav Naḥman said: The tanna taught —

the tanna taught:

“He died, and it buried him”

that is, the ox buried him inside the pit when it fell, and if so, it cannot be explained that he stood trial concerning the ox’s killing him.

And we resolve this:

There

there, in the beraita, it can be explained that the court found him liable before he died, for example:

the judges sat at the mouth of the pit and found him liable,

as the judges sat beside the pit and found him liable before his soul departed.