Bava Batra 313

אומר בחול אמרו וקל וחומר לשבת כיוצא בו זכין לגדול ואין זכין לקטן דברי ר' אליעזר רבי יהושע אומר בגדול אמרו קל וחומר לקטן

said: They said [this]<span class="x" onmousemove="('comment',' V. loc. cit. n. 10. ');">¹</span> in [respect of] a week-day.<span class="x" onmousemove="('comment',' When writing and acquisition are permissible. ');">²</span> and how much more so in the case of the Sabbath.<span class="x" onmousemove="('comment',' When these are not permissible and some provision has to be made for giving legal force to the dying man's wishes. ');">³</span>

רבי יהודה אומר רבי אליעזר אומר בשבת דבריו קיימין מפני שאינו יכול לכתוב אבל לא בחול רבי יהושע אומר בשבת אמרו קל וחומר בחול כיוצא בו זכין לקטן ואין זכין לגדול דברי רבי אליעזר ר' יהושע אומר לקטן אמרו קל וחומר לגדול:

Similarly: One may acquire ownership on behalf of [a person who is] of age,<span class="x" onmousemove="('comment',' Cf. p. 681, n. 17. ');">⁴</span> but not on behalf of a minor;<span class="x" onmousemove="('comment',' Cf. loc. cit. n. 16. ');">⁵</span> these are the words of R. Eliezer. R. Joshua said: [If they allowed possession to be acquired] on [behalf of] one who is of age, how much more so on behalf of a minor'. R. Judah stated,<span class="x" onmousemove="('comment',' For notes on R. Judah's version, v. our Mishnah supra 156b. ');">⁶</span>

<big><strong>מתני׳</strong></big> נפל הבית עליו ועל אביו או עליו ועל מורישיו והיתה עליו כתובת אשה ובעל חוב יורשי האב אומרים הבן מת ראשון ואח"כ מת האב ובעלי החוב אומרים האב מת ראשון ואח"כ מת הבן

'R. Eliezer said: On the Sabbath his [verbal] instructions are legally valid, because he is unable to write, but not on a week-day. R. Joshua said: [If] they said [this] in [respect of] the Sabbath, how much more so in [the case of] a week-day. Similarly: One may acquire ownership on behalf of a minor but not on behalf of [a person who is] of age; these are the words of R. Eliezer. R. Joshua said: [If they allowed possession to be acquired] on behalf of a minor, how much more so on behalf of[a person who is] of age.<span class="x" onmousemove="('comment',' R. Judah's version of the respective views of R. Eliezer and R. Joshua follows that recorded in the Mishnah. ');">⁷</span> <b><i>MISHNAH</i></b>. [IN THE CASE WHERE] A HOUSE<span class="x" onmousemove="('comment',' Lit., 'the'. ');">⁸</span> COLLAPSED UPON A MAN<span class="x" onmousemove="('comment',' Lit., 'upon him'. ');">⁹</span>

ב"ש אומרים יחלוקו ובית הלל אומרים נכסים בחזקתן:

AND HIS FATHER OR UPON A MAN<span class="x" onmousemove="('comment',' Lit., 'upon him'. ');">⁹</span> AND THOSE WHOSE HEIR HE IS,<span class="x" onmousemove="('comment',' E.g., brothers or other relatives who had no other heirs but him. ');">¹⁰</span> AND [THAT PERSON] HAD AGAINST HIM [THE CLAIM OF] A WOMAN'S <i>KETHUBAH</i><span class="x" onmousemove="('comment',' The marriage contract of his widow. ');">¹¹</span>

<big><strong>גמ׳</strong></big> תנן התם המלוה את חבירו בשטר גובה מנכסים משועבדים על ידי עדים גובה מנכסים בני חורין

OR [THAT OF] A CREDITOR;<span class="x" onmousemove="('comment',' But he left neither money nor possessions wherewith to meet his obligations. ');">¹²</span> [AND, IN THE FIRST CASE]. THE HEIRS OF THE FATHER PLEAD [THAT] THE SON DIED FIRST AND THE FATHER AFTERWARDS,<span class="x" onmousemove="('comment',' The son did not consequently inherit from his father whose estate would, therefore, be inherited by his living heirs. ');">¹³</span> WHILE THE CREDITORS PLEAD [THAT] THE FATHER DIED FIRST AND THE SON AFTERWARDS,<span class="x" onmousemove="('comment',' Hence, the son inherited his father's estate, and they, as the son's creditors, are entitled to seize it for their debts. ');">¹⁴</span>

בעי שמואל דאיקני וקנה מהו אליבא דרבי מאיר דאמר אדם מקנה דבר שלא בא לעולם לא תיבעי לך דודאי קנה אלא כי תיבעי לך אליבא דרבנן דאמרי אין אדם מקנה דבר שלא בא לעולם

BETH SHAMMAI HOLD<span class="x" onmousemove="('comment',' Lit., 'say'. ');">¹⁵</span> [THAT THE AMOUNT IN DISPUTE IS] TO BE DIVIDED,<span class="x" onmousemove="('comment',' The claim of the creditors is considered to be of equal force with that of the heirs. ');">¹⁶</span> AND BETH HILLEL HOLD<span class="x" onmousemove="('comment',' V. note 3. ');">¹⁷</span>

אמר רב יוסף תא שמע וחכמים אומרים זה היה פיקח שמכר לו את הקרקע מפני שהוא יכול למשכנו עליו

[THAT] THE ESTATE [IS TO REMAIN] IN ITS FORMER STATUS.<span class="x" onmousemove="('comment',' The claim of the heirs is regarded as certain, since they are entitled to the estate as the heirs either of the Father or of the son, while the claim of the creditors is doubtful, and no 'doubt' may supplant a 'certainty'. ');">¹⁸</span> <b><i>GEMARA</i></b>. We learnt elsewhere: He who lends [money] to another on a bond<span class="x" onmousemove="('comment',' Even though no security on the lender's real estate had been entered in it. ');">¹⁹</span> [is entitled to] collect [his debt] from [the borrower's] lands [even though they were subsequently] mortgaged.<span class="x" onmousemove="('comment',' Or sold. No one, it is assumed, would lend money without proper security, and the omission of the guarantee from the bond is regarded as a mere scribal oversight. Furthermore, any future buyer (or subsequent lender on the security) of the lands is assumed to have known of the existence of the loan (since the issue of a written note ensures for the matter due publicity), and must have consented to take the risk of having to surrender them to the creditor should the latter find no other property from which to collect his debt. (Cf. B.M. 14a). ');">²⁰</span>

אמר ליה רבא מיניה קאמר מיניה אפילו מגלימא דעל כתפיה כי קא מיבעיא לן דאיקני קנה ומכר דאיקני קנה והוריש מאי

[If, however, the loan was made] in the presence<span class="x" onmousemove="('comment',' Lit., 'by the hands'. ');">²¹</span> of witnesses<span class="x" onmousemove="('comment',' Without a written note. ');">²²</span> it may be collected from free<span class="x" onmousemove="('comment',' Such as has not been sold or mortgaged. ');">²³</span>

אמר רב חנא תא שמע נפל הבית עליו ועל אביו עליו ועל מורישיו והיתה עליו כתובת אשה ובעל חוב יורשי האב אומרים הבן מת ראשון ואח"כ מת האב ובעלי חובות אומרים האב מת ראשון כו'

property [only].<span class="x" onmousemove="('comment',' Infra 175a, supra 42a. ');">²⁴</span> Samuel inquired: What [is the law in the case where the borrower entered in the bond]. 'that I may acquire'.<span class="x" onmousemove="('comment',' I.e., not only what be already possesses but also that which he may purchase in the future shall be mortgaged for the debt. ');">²⁵</span> and he acquired?<span class="x" onmousemove="('comment',' After the note had been issued. Is the creditor entitled to seize this property if it was sold? ');">²⁶</span>

ואי סלקא דעתך דאיקני קנה ומכר דאיקני קנה והוריש לא משתעבד נהי נמי דאב מית ברישא דאיקני הוא

According to R. Meir who holds [the view that] a person may transfer possession of something that has not [yet] come into existence, there can be no question; for [the lender] has undoubtedly acquired possession.<span class="x" onmousemove="('comment',' I.e., the lender is entitled to seize any real estate bought and sold after the date of the note. ');">²⁷</span> The question arises according to [the view of] the Rabbis who maintain [that] a person may not transfer possession of something that has not [yet] come into existence.<span class="x" onmousemove="('comment',' Has a mortgage, according to the Rabbis, more force than a sale, and may the lender, therefore, seize the sold land or not? ');">²⁸</span> R. Joseph said, Come and hear: And the Sages Say: This [creditor] who sold him<span class="x" onmousemove="('comment',' The borrower. ');">²⁹</span>

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>