פירוש על בבא קמא 15:12
Tosafot on Bava Kamma
[If he] does not have [they] collect from the previous [buyer]. When a debtor sells some of his property, the rule is that we do not collect from property that has been sold when there is unsold property available from which to collect the debt, even if that unsold property is of the poorest quality. Thus the law that the victim of damages collects from the finest and the creditor from the medium quality is circumvented by the sale of those properties to the first and second purchasers. Subsequently, if and when the remaining property is collected to settle a debt, even if that happens after the sale of such property to a third purchaser, the order to be followed when settling the debts is not based on the qualities but on the dates of the sale of the properties. The last sold is the first to be collected and the first sold is the last to be collected.
We must also take into account the dates of the obligations. The earliest obligation is collected first and the last obligation is collected last, even though this may be to the detriment of the earliest obligation as Tosafot will now explain.
Rivo says: That if they, the victim of damages, the creditor and the woman collecting her k’suboh, all come at once to collect what is owed to them, whoever’s document precedes the others collects from the last purchaser first even if this will be to his disadvantage.
If the victim of damages was the earliest, he was damaged on the earliest date; he collects from the last purchaser even if that property happens to be the poorest. The rule that one collects from the last purchaser overrides the victim’s right to collect from the finest.
And if the creditor comes after the victim of damages, for example, the date of his loan precedes the date of the k’suboh; he too, collects from the last purchaser. And if he, the last purchaser, does not have any more of the land that he purchased from the debtor, he, the creditor, collects from the preceding purchaser, even if the land the second purchaser has is from the finest of the debtor’s property.
Ordinarily the creditor collects from the medium-quality. In this situation we are following the order that the various debts came into existence. That order takes precedence over the rule that the creditor receives payment from the intermediate-quality since that rule has been circumvented by the debtor selling the medium-quality before selling the poorest property.
And the woman, who is collecting her k’suboh and happens to be the latest obligation of the three, collects from the very first purchaser even if that property is the finest of the finest.1See Shulchon Oruch Choshen Mishpot 119, 4, who accepts Rivo’s ruling. He also cites Rosh’s ruling about striking a private deal between the damages victim and the purchaser of the ‘finest’.
Time line
Obligations:
Ador 1- damages
Ador 2- debt
Ador 3- k’suboh – marriage contract
Sale of property:
Ador 4- finest of the finest
Ador 5- finest
Ador 6- inferior
The damages victim of Ador 1 is the first obligation. He is paid from the field sold last on Ador 6, even though it is inferior-quality.
The creditor whose loan is dated Ador 2 is paid from the balance of the inferior if there is any left and if there is nothing left he is paid from the field sold on Ador 5, even though it is the finest.
The marriage contract which was dated Ador 3 is paid from the finest if there is any remaining after satisfying the debt. If not, she is paid from the first field sold on Ador 4, even though it is the finest of the finest.
See Rosh who adds that the victim of damages may make a private deal with the first purchaser who has the finest property. The first purchaser may then say I give up my right to compel the victim of damages to collect from the last purchaser and will pay him from the finest properties that I purchased from the debtor. This is not considered a violation of the rights of the debtor and the k’suboh. The same may be true of the creditor who can strike a deal with the holder of the medium properties.
We must also take into account the dates of the obligations. The earliest obligation is collected first and the last obligation is collected last, even though this may be to the detriment of the earliest obligation as Tosafot will now explain.
Rivo says: That if they, the victim of damages, the creditor and the woman collecting her k’suboh, all come at once to collect what is owed to them, whoever’s document precedes the others collects from the last purchaser first even if this will be to his disadvantage.
If the victim of damages was the earliest, he was damaged on the earliest date; he collects from the last purchaser even if that property happens to be the poorest. The rule that one collects from the last purchaser overrides the victim’s right to collect from the finest.
And if the creditor comes after the victim of damages, for example, the date of his loan precedes the date of the k’suboh; he too, collects from the last purchaser. And if he, the last purchaser, does not have any more of the land that he purchased from the debtor, he, the creditor, collects from the preceding purchaser, even if the land the second purchaser has is from the finest of the debtor’s property.
Ordinarily the creditor collects from the medium-quality. In this situation we are following the order that the various debts came into existence. That order takes precedence over the rule that the creditor receives payment from the intermediate-quality since that rule has been circumvented by the debtor selling the medium-quality before selling the poorest property.
And the woman, who is collecting her k’suboh and happens to be the latest obligation of the three, collects from the very first purchaser even if that property is the finest of the finest.1See Shulchon Oruch Choshen Mishpot 119, 4, who accepts Rivo’s ruling. He also cites Rosh’s ruling about striking a private deal between the damages victim and the purchaser of the ‘finest’.
Time line
Obligations:
Ador 1- damages
Ador 2- debt
Ador 3- k’suboh – marriage contract
Sale of property:
Ador 4- finest of the finest
Ador 5- finest
Ador 6- inferior
The damages victim of Ador 1 is the first obligation. He is paid from the field sold last on Ador 6, even though it is inferior-quality.
The creditor whose loan is dated Ador 2 is paid from the balance of the inferior if there is any left and if there is nothing left he is paid from the field sold on Ador 5, even though it is the finest.
The marriage contract which was dated Ador 3 is paid from the finest if there is any remaining after satisfying the debt. If not, she is paid from the first field sold on Ador 4, even though it is the finest of the finest.
See Rosh who adds that the victim of damages may make a private deal with the first purchaser who has the finest property. The first purchaser may then say I give up my right to compel the victim of damages to collect from the last purchaser and will pay him from the finest properties that I purchased from the debtor. This is not considered a violation of the rights of the debtor and the k’suboh. The same may be true of the creditor who can strike a deal with the holder of the medium properties.
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