Gittin 50b — the Talmud in English

And we conclude:

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the orphans of whom they said “adults,” and it is unnecessary to say “minors,” whether with regard to an oath or with regard to inferior-quality land.

We learned in the Mishna:

One does not collect from encumbered property where there is unencumbered property.

Rav Aḥadvoi bar Ami inquired:

property that is encumbered not because of a sale, but because he gave it

as a gift—what is

its law?

For:

It is a regulation that the Sages instituted

not to collect from encumbered property

because of the loss of the purchasers,

who expended money on the purchase.

But in the case of a gift,

they did not expend money, and

there is no loss of the purchasers;

it is possible that they

did not

institute [the regulation].

Or perhaps,

in

a gift as well

there is a “loss,” for

if he did not have benefit from him, he would not have given him a gift.

That is to say, it is not the way of a person to give a gift unless he received benefit from him.

And therefore,

even with a gift one may say:

It is like the loss

of the purchasers,

and the Sages instituted that one does not collect it where there is unencumbered property.

Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: Come and hear

from a beraita, that they instituted this even with a gift:

A dying man

who said: Give two hundred zuz to so-and-so and three hundred

zuz

to so-and-so and four hundred

zuz

to so-and-so. 145].

They do not say: Whoever is first in the deed

of bequest

acquires,

and is prior to take from the property, so that if property equal to the measure of all their gifts is not found there, the last one loses, but not the first; rather, they are all equal.

Therefore,

if after each one took his portion,

there emerged against him [

against the donor]

a promissory note, the creditor collects

the lender

from all of them.

That is to say, all of them suffer a loss in the matter: The lender collects from the portion of one of them, and afterward they return and pay that one from whom the lender collected, each according to his portion.

But if he said

the dying man:

Give two hundred zuz to so-and-so, and after him

three hundred zuz

to so-and-so, and after him

four hundred zuz

to so-and-so,

his intention was to give them precedence one over another, and

they say: Whoever is first in the deed

of bequest

acquires.

Therefore,

if

a promissory note emerged against him,

the lender does not

collect

except

from the last one,

for the first ones say to the lender: “We have left you a place with the last one,” since they preceded him in their acquisition.

If he does not have [

in the property of the last one] enough to cover the obligation of the entire note,

he collects

the lender

from

this one

before him,

and if even in the property of the second one

he does not have

enough for the entire obligation of the note,

he

collects

from

this one

before the one before him

the last one; that is, from the first one.

And the Gemara proves from the latter clause that when he said “and after him to so-and-so,” he collects from the last one, it concerns every case,

even though the first one [

the first recipient] took in his portion

intermediate-quality property, and the latter

took

inferior-quality property.

From inferior-quality property the creditor collects

the creditor,

from intermediate-quality property he does not collect,

since the intermediate-quality property that was given first is considered “encumbered property” in relation to the inferior-quality property that is in the possession of the last one.

And indeed, the wording of the beraita, “he said: Give,” indicates a gift, and if so,

infer from this: With a gift as well the Sages instituted the regulation

not to collect from encumbered property where there is unencumbered property.

And we reject this: It does not concern recipients of gifts, but rather

here, with what are we dealing? With debt

ors,

and

therefore, when a promissory note emerged against them, which preceded their debt, he collects from the last one, for a creditor is like a purchaser, in whose case there is a loss.

And we challenge:

But he says “Give,”

which indicates a gift?

And we answer: The

“Give”

that he says means

“with my debt.”

And we ask: If they are creditors, presumably each one’s note is in his hand,

and

if so,

let us see the note

of the loan

of whom is prior,

and the one who is earlier in his note will be prior to collect.

And why do we say in the first clause that they are all equal, and in the latter clause why do we follow the earlier and later one in the bequest?!

And we explain: With an oral loan,

for there is no note,

and property is not encumbered to him; therefore they do not collect according to the time of the loan, but according to the time of the bequest.

And it still remains difficult:

But he says “whoever is first in the note,”

which indicates a loan note!?

And we answer: “Whoever is first”

in the deposit document [

the bequest] is what we say.

And if you wish, say:

The beraita is in fact speaking

even

with

a gift as well,

and not specifically with creditors,

and

nevertheless

it is not difficult,

and one cannot prove from here that with a gift as well the Sages instituted that one does not collect from encumbered property.

For

what

it teaches, “

he collects from the last one,”

may be explained:

Only the last one suffers the loss.

Because the creditor collects the intermediate-quality property according to his law, and afterward the first recipient collects from the last one, since he preceded him in his encumbrance; consequently, it is the last one who loses his gift.

And if you wish, say:

The creditor in fact collects his debt from the last one, but the beraita is not dealing with a case in which the first one has intermediate-quality property and the last one inferior-quality property; rather,

all of them were equal [

all the lands]

to one another [

one to another].

We learned in the Mishna:

One does not remove

from encumbered property

for the eating of produce

that grew in the possession of a purchaser from the robber, as was explained in the Mishna, and even if the robber wrote a deed for the purchaser, because of the rectification of the world.

And we explain:

What is the reason?

Does the purchaser not collect the value of the land itself from encumbered property, and what is different about the value of the produce, that he collects it only from unencumbered property?!

A. A person’s property is guarantor and encumbered for payment of his debts, and even if he sold it to others, they collect from it.

B. With regard to debts concerning which no public notice emerges, the Sages removed the property from being encumbered to them, for if you were to come to seize from purchasers even for such debts, no person would purchase a field from his fellow, since he would fear lest there be an encumbrance upon it.

C. A loan documented in a note has public notice, and therefore he collects from encumbered property, but an oral loan has no public notice.

D. Every debt that the Sages instituted to impose upon a person is called a “condition of the court,” and it has public notice, even though his obligation was not written in a note.

Ulla said that Rabbi Shimon ben Lakish said: Since

no public notice emerges concerning produce that was not in the world at the time of the sale, therefore it is like an oral loan, and like that which

is not written

in a note.

He said to him [

he asked],

Rabbi Abba said to Ulla: But the sustenance of the wife and the daughters,

for a person is obligated in the sustenance of his wife and daughters by a “condition of the court,” and it is found

that they are like written

in a note

they are considered, and

it teaches

in the Mishna [48b] that

one does not remove

for them from encumbered property!?

He said [

he answered]

to him

Ulla to Rabbi Abba:

There

with the sustenance of his wife and daughters it is different, for

from the outset this is how they instituted it [

the Sages instituted]: as

written they are

considered

with regard to unencumbered property, and

even so

they are not written with regard to encumbered property.

And likewise [

according to Ulla’s words in the name of Resh Lakish]

Rabbi Asi said that Rabbi Yoḥanan said:

One does not remove for the eating of produce from encumbered property

since it is not written.

He said to him [

he asked],

Rabbi Zeira said to Rav Asi: But the sustenance of the wife and the daughters, they are like written they are considered,

for they eat by virtue of the conditions of the court,

and it teaches

in the Mishna

one does not remove

for them from encumbered property!?

He said to him: From the outset this is how they instituted it: They are written with regard to unencumbered property, and they are not written with regard to encumbered property.

Rabbi Ḥanina said:

One does not remove for the eating of produce from encumbered property

since

their value is not

fixed,

for it is impossible to estimate in advance how much it will be, and the purchasers will not be able to take care to leave land with the seller from which to collect.

They inquired [

the members of the academy were uncertain]

with regard to Rabbi Ḥanina

whether also

fixed and

also

written he requires.