Responsa for Bava Batra 313:11

אמר להו רב נחמן זעירא חברין תרגמה מצוה על היתומים לפרוע חובת אביהן מתקיף לה רב אשי מלוה על פה הוא ורב ושמואל דאמרי תרוייהו מלוה על פה אינו גובה לא מן היורשין ולא מן הלקוחות

the land<span class="x" onmousemove="('comment',' After the date of the loan, and the latter points to this fact as evidence that the loan had already been repaid. Had he not repaid his debt, one authority (Admon) maintains (Keth. 110a), the lender would not have sold him the field but would have retained its purchase money as payment of the loan. The fact that he did sell it confirms, in Admon's opinion, the borrower's claim; and the lender consequently forfeits his right to seize it. ');">³⁰</span> was prudent, because thereby<span class="x" onmousemove="('comment',' By the sale of the land. ');">³¹</span> he was in a position to take from him a pledge.<span class="x" onmousemove="('comment',' Keth. 110a. The sale, then, according to the Sages, is no evidence that the loan had been repaid; and the creditor is, therefore, entitled to seize the land though it was bought after the date of the note of indebtedness. Thus it has been proved, in answer to Samuel's enquiry, that property purchased after the loan was made may be seized by the creditor. ');">³²</span> Raba said to him: You mean,<span class="x" onmousemove="('comment',' [Lit., 'say'. Following the reading of R. Gersh. and MSS.] ');">³³</span> 'from him'!<span class="x" onmousemove="('comment',' The borrower. ');">³⁴</span> From him<span class="x" onmousemove="('comment',' I.e., when the property is still in the borrower's own possession. ');">³⁵</span> [surely], even the cloak that is upon his shoulders [may be seized]!<span class="x" onmousemove="('comment',' And no question would arise in such a case. ');">³⁶</span> Our question, however, is what [is the law in the case] where [the borrower entered in the bond]. 'That I may acquire'. [and] he [subsequently] bought and sold, [or where he entered] 'That I may acquire' [and] he [subsequently] bought or transmitted [his purchase] as an inheritance?<span class="x" onmousemove="('comment',' I.e., where the land is no more in the possession of the borrower. ');">³⁷</span> R. Hana replied, Come and hear: [IN THE CASE WHERE] A HOUSE COLLAPSED UPON A MAN AND HIS FATHER [OR] UPON A MAN AND THOSE WHOSE HEIR HE IS, AND [THAT PERSON] HAD AGAINST HIM [THE CLAIM OF] A WOMAN'S <i>KETHUBAH</i> OR [THAT OF] A CREDITOR; [AND. IN THE FIRST CASE]. THE HEIRS OF THE FATHER PLEAD [THAT] THE SON DIED FIRST AND THE FATHER AFTERWARDS, WHILE THE CREDITORS PLEAD [THAT] THE FATHER DIED FIRST etc. Now, if it were to be assumed [that where a borrower entered in the bond]. 'that I may acquire'. [and] he [subsequently] bought and sold, [or where he entered]. 'that I may acquire'. and he [subsequently] bought or transferred [his purchase] as an inheritance, [the land] does not become mortgaged [to the creditor, what claim could the creditors advance?] Even if it were granted that the father had died first [and that the son, had consequently. inherited his estate]. this [is merely another form of the case where a bond contains the entry] 'that I may acquire'!<span class="x" onmousemove="('comment',' Since at the time the debt was incurred the son was not yet in possession of his inheritance; and after it came into his possession it was, as soon as he was killed, automatically transmitted to his heirs. As our Mishnah, however, regards the creditors' plea as tenable, it must be inferred that even an estate that was acquired and transmitted to others, after the date of a loan, is also mortgaged to the creditors. ');">³⁸</span> R. Nahman said to them: Our colleague Zera has explained this [as follows]: It is the moral duty of the orphans to repay the debt of their father.<span class="x" onmousemove="('comment',' The claim of the creditors, in our Mishnah, is not based on the law of mortgage but on moral considerations. Hence no inference may be drawn from it on the law of the mortgage of property bought and sold after the date of a loan. ');">³⁹</span> R. Ashi demurred: This [surely] is a verbal loan,<span class="x" onmousemove="('comment',' Since, as has just been asserted, the creditors have no legal claim upon the dead man's estate, the bond of indebtedness is of no value, and the loan, as far as this estate is concerned, becomes merely a verbal one. ');">⁴⁰</span> and both Rab and Samuel stated [that] a verbal loan cannot be collected either from the heirs or from the buyers!<span class="x" onmousemove="('comment',' Only in the case of a loan for which a bond of indebtedness had been given is it the moral duty of orphans to repay their father's debt. The creditors, in our Mishnah, could not, consequently, advance even a moral claim. What, then, is their plea? ');">⁴¹</span>

Teshuvot Maharam

Teshuvot Maharam