Ketubot 102a (קב.) — the Talmud in English

Two fathers of prospective spouses spoke with each other about their undertakings for the marriage of their children. The father of the bride asked the father of the groom:

his

when he pays the koen the five sela that he undertook to give him in the document. This payment is not “the redemption of the firstborn”; rather, it is considered repayment of the debt concerning which he admitted and obligated himself in his own handwriting [without signing the document himself] to pay five sela.

And it is objected:

If so,

since you said that, because by Torah law he is subordinated to him, his acknowledgment in his own handwriting is not considered an “acknowledgment” that creates an obligation, it follows that when he gives the five sela to the koen, he is not repaying a debt acknowledged in the document; rather, it is a payment for the redemption of the firstborn. If so,

his son—

why

does the Mishna say that he

is not redeemed?

The Gemara answers: The intent of the Mishna is

as

said by

Ulla.

As Ulla said: By Torah law,

one who wrote his fellow a promissory note for the five sela, his son is

redeemed—

when he gives

the five sela to the koen.

And for what reason did they say

in the Mishna that

his son is not redeemed

even when he gives them?

It is a rabbinic decree:

The Sages decreed that such a redemption is ineffective,

lest people say

that one may

redeem with promissory notes

of debt.

For the Sages were concerned that people might err and say that redemption is effective through this very promissory note [and they would not know that the redemption takes effect only afterward, when the father pays the koen], and they would think that redemption is effective through promissory notes that they hold against other people [in which case they would not pay the amount written in the promissory note themselves; rather, the koen would collect the money stipulated in the note from the debtors listed in it], with the result that they would not redeem their sons, since a promissory note that a person holds against others is excluded from redemption of the firstborn [by an exclusion derived from the verse, in tractate Bekhorot].

The distinction between his own note of undertaking, which is effective by Torah law once he pays, and a promissory note that he holds against others, which is not effective by Torah law even when the koen collects it from the debtors, follows from the fact that in fulfilling his own undertaking he himself is paying the redemption money; whereas when the koen collects his promissory note from others, the father has not himself given the redemption money to the koen, but has merely transferred the promissory note to him, while the collection itself is carried out by the koen from the people who owe the money, and not from the father himself.

And the Sages decreed, in order to prevent people from confusing the laws governing the two types of notes [his own note of undertaking and a promissory note that he holds against others—that is, if a father writes the koen a note stating that he owes him five sela, his redemption should not take effect even when he pays this money to the koen; rather, he must give him five other sela].

Rava said:

The dispute between Rabbi Yohanan and Reish Lakish is

in accordance with a dispute among tannaim—

that is, it parallels a dispute among tannaim who disagreed about this very matter.

This is what we learned in tractate Bava Batra [175b]:

One who guarantees a debt documented in a promissory note undertakes to repay the debt to the lender [if the borrower does not repay him], as though he himself had borrowed from him under a promissory note; and the guarantor’s property is subordinated to repayment of the debt. Thus, even if the guarantor sells his property, the lender can still collect from it, even from purchasers, as is the law with regard to a lender whose loan is documented in a promissory note.

The names of guarantors for a loan documented in a promissory note must appear in the note, so that the witnesses’ signatures on the note will constitute testimony also concerning the guarantors’ agreement to guarantee repayment of the debt recorded in the note.

But if the guarantors’ names do not appear in the note and they sign beneath the witnesses’ signatures, they are guarantors of the debt only under the law governing an oral loan. Their property is not subordinated, and the lender may collect from them only from unencumbered property.

A guarantor whose name appears after the signatures on the note,

that is, if the guarantor’s name was written beneath the witnesses’ signatures, is not one concerning whom the witnesses who signed the note testify; rather, the guarantor himself acknowledges that he accepted the guarantee.

It follows that this guarantor’s guarantee for repayment of the debt is not a guarantee for a loan documented in a promissory note, but is like a guarantee for an oral loan.

Therefore,

the lender collects

from the guarantor only

from unencumbered property,

and not from encumbered property in the possession of purchasers who bought it from the guarantor.

There was an incident

involving a guarantor whose name appeared after the signatures on the note, who

came before Rabbi Yishmael, and he said: The lender collects

from the guarantor

only from unencumbered property,

as is the law with regard to a guarantor for an oral loan, on the basis of the guarantor’s acknowledgment, even though his acknowledgment was not made in the presence of witnesses!

Ben Nannas said

to Rabbi Yishmael:

He collects neither from unencumbered property nor from encumbered property,

since the guarantor did not designate witnesses for his acknowledgment of the guarantee!

He said to him,

Rabbi Yishmael asked him:

Why

may the lender not collect from unencumbered property on the basis of the guarantor’s acknowledgment?

Ben Nannas said to him:

The

case is one where

the lender

was strangling his fellow

the borrower

in the marketplace,

demanding that he repay his debt,

and his fellow found him

that is, the borrower’s fellow saw the lender strangling his friend, the borrower,

and said to him

the lender:

Leave him

my friend, the borrower, and do not strangle him;

and I will give you

what he owes you for his debt [that is, he acknowledged, not in the presence of witnesses, that he was guaranteeing repayment of the debt]—

the guarantor is exempt

from paying him, because

it was not on the basis of his trustworthiness

the guarantor’s

that he lent

the lender to the borrower.

That is because in this case the guarantor did not accept his undertaking in the presence of witnesses. He did not say, “You are my witnesses” that I accept upon myself repayment of the debt; rather, he merely acknowledged to him that he accepted the guarantee for repayment of the debt.

And this is analogous to one who acknowledged to his fellow in a document written in his own handwriting that he owes him one hundred dinars, without designating witnesses for this matter, concerning which Rabbi Yohanan and Reish Lakish disagreed as to whether his acknowledgment is effective.

And Rava says,

let us say

that we should conclude that

Rabbi Yohanan

is the one

who says in accordance with Rabbi Yishmael,

that his acknowledgment is effective to obligate him even if it was accepted without the designation of witnesses,

and Reish Lakish

is the one

who says in accordance with Ben Nannas,

that his acknowledgment is ineffective since he did not designate witnesses for it.

The Gemara accepts part of Rava’s statement, but, on the other hand, rejects the other part—

According to Ben Nannas—

everyone agrees!

Certainly Rabbi Yohanan cannot hold like him.

Therefore, Rava correctly said that it is impossible to explain the dispute between Rabbi Yohanan and Reish Lakish in a manner in which both of them hold like Ben Nannas, since Rabbi Yohanan necessarily does not hold like him but rather like Rabbi Yishmael, while only Reish Lakish can hold like Ben Nannas.

For if a guarantor, whose liability is explicitly established by the Torah [as it is derived from Judah’s guarantee to Jacob our patriarch: “I will guarantee him”], is not bound by a mere acknowledgment according to Ben Nannas, but only if he designates witnesses for it, then all the more so one who acknowledges to his fellow that he owes him, whose obligation is not explicitly established by the Torah, does not become obligated to him without designating witnesses for it, according to Ben Nannas.

And Rava correctly said that Rabbi Yohanan holds only like Rabbi Yishmael, and not like Ben Nannas.