Since it was taught, however, 'As they cannot produce a bond of indebtedness against one another so they cannot produce [a bond] against others'1 [the question arises]2 wherein [lies the principle of] their disagreement?3 — They differ on [the question whether] 'letters'4 [may] be acquired by means of delivery.5 Our Tanna holds [that] 'letters' are acquired by means of delivery6 and the external7 Tanna holds [that] 'letters' are not acquired by means of delivery.8
And if you prefer I would say that all9 [agree that] 'letters' may be acquired by delivery,10 but they differ here on [the question whether] it is necessary11 to produce proof.12 Our Tanna13 'holds that proof need not be produced14 while the external Tanna15 holds that proof must be produced,16 for it was stated: 'Letters' are acquired by delivery; Abaye said: He17 must, however, produce proof;18 and Raba said: He need not produce proof.19
Said Abaye: Whence do I derive this?20 — For it was taught: 'The brother21 who presents22 the bond of indebtedness23 must24 produce proof'.25 Obviously, this applies also to the case26 of others.27 Raba, however, said: Brothers are different because they pilfer from one another.28
Others say, Raba said: Whence do I derive this?29 — For it was taught: 'The brother who presents the bond of indebtedness must produce proof'.30 [from which it is obvious that this applies to] brothers [only] since they pilfer from one another but not [to] others.31 And Abaye32 [explains that] it was necessary [to specify] brothers33 [because] it might have been assumed [that], as they pilfer from one another, they are [all] particularly alert34 and should not [therefore] require to produce proof;35 hence [it was necessary] to teach us [that it is not so].36
As regards, however, the following wherein it was taught. 'As they37 may present a bond of indebtedness against others so may they present [bonds] against each other', [the question arises] wherein lies [the principle of] their38 disagreement?39 They differ on [the question whether] a bond [may] be written for a borrower though the creditor be not with him. Our Tanna40 holds [that] a bond may be written for a borrower although the creditor be not with him. [Consequently it may] sometimes [happen] that one41 would go to a scribe and witnesses and tell them, 'Write for me a bond because I intend borrowing [money] from my friend Joseph son of Simeon'; and, after they had written and signed [it] for him, he would take hold of it and demand from him,42 'Give me the hundred [zuz] which you borrowed from me'.43 The external Tanna,44 holds that no bond may be written for a borrower unless the creditor be with him.45
[IF] A MAN FOUND AMONG HIS DEEDS [A RECORD TO THE EFFECT THAT] THE BOND OF JOSEPH SON OF SIMEON [WAS] DISCHARGED, THE BONDS OF BOTH [ARE CONSIDERED TO BE] DISCHARGED etc. The reason46 is thus because [a record] was found, but had there been found none, [a bond] could be presented [against one of them]? Surely we have learnt, NOR MAY ANOTHER [PERSON] PRODUCE A BOND OF INDEBTEDNESS AGAINST THEM! — R. Jeremiah replied: In [the case where the bonds record the names of] the third [generation].47 Then let us see in whose name the discharge was made out!48 — R. Hoshaia replied: Where the third [generation] is indicated in the bond but not in the discharge.49 Abaye said: This is the meaning50 [of our Mishnah]; [IF51 a borrower]52 FOUND AMONG HIS DEEDS [A QUITTANCE SHOWING] THAT THE BOND OF JOSEPH SON OF SIMEON [against him53 WAS] DISCHARGED, THE BONDS OF BOTH [ARE CONSIDERED TO BE] DISCHARGED.54
HOW SHOULD THEY PROCEED? THEY SHOULD INDICATE THE THIRD [GENERATION] etc. A Tanna taught: If both were priests55 they enter [the names of previous] generations.56
MISHNAH. IF [A FATHER]57 SAID TO HIS SON,' ONE58 AMONG MY BONDS IS DISCHARGED BUT I DO NOT KNOW WHICH', THE BONDS OF ALL HIS DEBTORS59 ARE [CONSIDERED] DISCHARGED.60 IF AMONG THEM61 WERE FOUND TWO [BONDS, PERTAINING] TO ONE [DEBTOR], THE LARGER62 [ONE IS DEEMED] DISCHARGED AND THE SMALLER UNDISCHARGED.63
GEMARA. Raba said: [If a person declared], 'The bond against you, [which I have] in my possession is discharged', the larger [one is deemed] discharged and the smaller undischarged. [If, however, he declared], 'The debt you owe me is paid', all64 his bonds [are deemed] discharged.64 Said Rabina to Raba: Consequently65 [should one say to another],' My field is sold to you', his larger field [would be deemed to have been] sold to him, [but if he said,] 'The field that I have is sold to you', all his fields66 [would then be deemed] sold! — There,67 the holder of the deed is at a disadvantage.68
MISHNAH. IF A MAN LENDS MONEY TO ANOTHER ON A GUARANTOR'S SECURITY,69 HE MUST NOT EXACT PAYMENT FROM THE GUARANTOR.70
Original footnotes renumbered.
- Because it is possible that one of them lost the bond and the other, who presents it at court, accidentally found it.
- Since, as has been said, loss of the bond is not suspected.
- That between the Baraitha and Our Mishnah, from the latter of which it was deduced, supra, that either of the Josephs may produce a bond against others, a deduction with which, since it referred to the case of a particular individual, even Abaye agreed.
- A bond.
- Mesirah, v. Glos.
- Since loss of the bond is not suspected, it can only be assumed that Joseph the creditor delivered the bond to the other Joseph. As 'letters' are acquired by delivery, the holder of the bond is legally entitled to the loan.
- The Tanna of the Baraitha.
- The debtor can consequently refuse payment of the bond, pleading that he does not owe the money to the holder of the bond but to the other Joseph; while to the other he can refuse payment on the ground that he has no bond to prove his claim.
- The authors of the Baraitha under discussion and of our Mishnah.
- Mesirah, v. Glos. And no deed of sale is necessary (v. supra 77a).
- For the holder of the bond.
- That he received the bond as a gift or purchase and that he did not merely find it or receive it as a deposit.
- The author of our Mishnah.
- The possession of the bond is sufficient evidence that the debt is owing to its holder. Hence the inference from our Mishnah, that one of the Josephs may present a bond of indebtedness against a third person who cannot consequently refuse payment by demanding additional proof of the holder's title to ownership.
- The author of the Baraitha.
- Otherwise the debtor can plead that the holder has found the bond in the street or that it was only deposited with him. Hence the statement in the Baraitha that none of the Josephs may present a bond against a third person who could plead that the bond belongs to the other Joseph and that the one who presented it received it only as a deposit or found it.
- The holder of the deed.
- Cf. supra note 2.
- Cf. supra note 4.
- That proof is required apart from the production of the deed.
- Lit., 'one of the brothers'.
- Lit., 'that goes out from under his hand'.
- Which bears the name of his father as creditor or which has been acquired by the father from another creditor.
- If the other brothers claim that the bond was bequeathed to all of them, and that the holder has unlawfully appropriated it for himself.
- That the bond lawfully belongs to him only.
- Lit., 'what not? The same law'.
- Strangers. who dispute his claim to the bond he holds.
- In the case of a bequeathed estate. All the brothers being heirs to it, every one considers himself entitled to appropriate as much of it as he possibly can. It is for this reason only that it was ordained that the brother who claims, against the statement of the other brothers, to be the sole owner of an inherited bond, must produce proof. As this unlawful appropriation could not apply to the case of a stranger, proof in that case is not required.
- That apart from the production of the bond no other proof is required.
- V. supra notes, 11, 15.
- Who could have no plausible excuse or justification for such an appropriation. Hence no proof is required in the case of a stranger.
- Who requires proof in the case of a stranger also.
- Though the law applies to strangers also.
- In watching one another.
- Apart from the presentation of the bond. The fact that one of them is actually holding it should be sufficient proof that it belongs to him.
- But that brothers as well as strangers must produce proof of lawful acquisition.
- Two Josephs living in the same town. Cf. our Mishnah.
- This Baraitha on the one hand and the Baraitha previously cited and our Mishnah on the other.
- According to this Baraitha the two Josephs may present bonds against one another while according to the previously cited Baraitha and our Mishnah, they may not.
- Of our Mishnah; and so the Tanna of the previously cited Baraitha.
- Of the two Josephs.
- His namesake whose name would appear in the bond as the debtor.
- In order to avoid such a fraud it had been instituted that, in the case of two Josephs, bonds may not be presented by one against the other.
- The author of the last-mentioned Baraitha.
- Consequently, the one Joseph would not be able to obtain a bond unless the other Joseph should be present. Hence there would be no possibility to practise the fraud described. The Josephs, therefore, may present bonds against one another.
- Why the bonds of both are considered as discharged and no claim may be advanced against either of them.
- Cf. our Mishnah. In such a case bonds may be presented against them.
- Lit., 'written'. Why, then, should the bonds of both be considered discharged.
- Each Joseph is consequently in a position to claim that the name of his grandfather was omitted from the discharge though it was mentioned in the bond.
- Lit.,' thus he said'.
- BaH inserts, 'they may present (bonds) against others'.
- Not, as has been previously assumed, a creditor.
- Lit., 'against me'.
- Since the debtor can produce the same quittance whenever either of the two Josephs should present his bond. On the question of mutual authorisation or the simultaneous presentation of the bonds of the two, v. Rashb. a l.
- And their names also were alike up to the third generation.
- Until the names of ancestors are reached whose names differ.
- Lying on his death-bed.
- Lit., 'bond'.
- Lit., 'all of them'.
- It is left to the conscience of those debtors who did not yet repay their loans to admit their liabilities.
- Lit., 'there'.
- The one containing the bigger amount.
- The debtor is given the benefit of the doubt. He must, however, repay the smaller amount since the creditor declared that one bond only was discharged.
- 'Debt' implies all that the debtor owes irrespective of the number of the written bonds.
- Lit., 'but from now'.
- 'Field', like 'debt', in Raba's statement, being regarded as a collective noun, implying all one's fields.
- The case of sale and purchase.
- Lit., 'the hand of the owner of the deed is upon the lowest'. He seeks to deprive the owner of property in the possession of which he is confirmed. Hence he must produce convincing proof. In the case of a debt, however, the claimant is the creditor, while the debtor is the confirmed possessor of the sum claimed. Hence the advantage is on the side of the latter.
- Lit., 'by the hands of a guarantor'.
- Before the debtor was sued and, the court having ordered him to pay, was found unable to meet his obligation.
Baba Bathra 173b
IF, HOWEVER, HE SAID TO HIM,1 'ON CONDITION THAT I MAY EXACT PAYMENT FROM WHOM I WILL', PAYMENT MAY BE EXACTED FROM THE GUARANTOR. RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT FROM THE GUARANTOR MAY IN NEITHER CASE2 BE EXACTED.3 AND SO SAID RABBAN SIMEON B. GAMALIEL: WHERE [A MAN] WAS GUARANTOR FOR A WOMAN IN [RESPECT OF] HER KETHUBAH, AND HER HUSBAND DIVORCED HER, [THE HUSBAND] MUST VOW TO DERIVE NO [FURTHER] BENEFIT FROM HER. [SINCE IT IS] POSSIBLE THAT THEY MIGHT FORM A CONSPIRACY AGAINST THE PROPERTY OF THE GUARANTOR4 AND THEN [THE HUSBAND] WOULD TAKE HIS WIFE BACK AGAIN.5
GEMARA. What is the reason?6 — Both Rabbah and R. Joseph explain: [Because the guarantor can say,] 'You have entrusted me with a man;7 and a man have I handed over to you'.8 R. Nahman demurred: [Is not] this9 the law of the Persians? — On the contrary; they [invariably] go after the guarantor!10 — [This,] however, [is the objection]: [Is not this ruling9 like that of] a Persian court of law [the judges of] which do not give [any] reason for their decisions?11 — But, said R. Nahman, the meaning of12 HE [MUST] NOT EXACT PAYMENT FROM THE GUARANTOR [is that] he [may] not demand [payment from] the guarantor first.13 Thus it was also taught [elsewhere]: If [a man] lends [money] to another on a guarantor's security, [payment] shall not be demanded [from the] guarantor [in the] first instance. If, however, [the creditor] said, 'On condition that I may exact payment from whom I will' the guarantor may be called upon first.14
Said R. Huna: Whence [may it be deduced] that a guarantor becomes responsible [for a debt he has guaranteed]?15 — For it is written, I will be surety for him; of my hand shalt thou require him.16 R. Hisda demurred: [This], surely was [an unconditional] assumption [of obligation],17 for it is written, Deliver him into my hand,18 and I will bring him back to thee!19 — But, said R. Isaac: [It20 may be deduced] from the following: Take his garment that is surety,21 for a stranger; and hold him in pledge that is surety for an alien woman.22 Furthermore, it is said, My son, if thou art become surety for thy neighbour,23 if thou hast struck thy hands for a stranger,24 [if] thou art snared by the words of thy mouth,24 thou art caught by the words of thy mouth, do this now, my son, and deliver thyself, seeing that thou art come into the hand of thy neighbour; go, humble thyself, and urge thy neighbour.25 If he has [a claim of] money upon you,26 open out27 for him the palm of [your] hand;28 and if not,29 get at him through many friends.30
Amemar said: [The question] whether a guarantor is responsible31 [for the payment of the debt he guaranteed, is a matter of] dispute [between] R. Judah and R. Jose. According to R. Jose. who said, 'asmakta32 conveys title,'33 a guarantor is responsible. According to R. Judah, [however], who said 'asmakta gives no title', the guarantor Is not responsible.34 Said R. Ashi to Amemar: Surely, it is the regular practice35 [of the courts to rule] that asmakta gives no title,36 and [yet that] a guarantor is held responsible! — But, said R. Ashi having regard to the pleasure of being trusted [by the creditor] he determines to undertake the responsibility.37
IF, HOWEVER, HE SAID, 'ON THE CONDITION THAT34 MAY EXACT PAYMENT FROM WHOM34 WILL' etc. Rabbah b. Bar Hana said in the name of R. Johanan: This applies only in the case38 where the debtor has no property,39 but where the debtor has property no payment may be exacted from the guarantor. Since, however, it is stated in the final clause: RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT FROM THE GUARANTOR MAY IN NEITHER CASE BE EXACTED,40 one might infer that in the opinion of the first Tanna there is no difference whether he had or had not41 [any property]!42 — There is a lacuna [in our Mishnah].and the proper reading is as follows:43 IF [A MAN] LENDS [MONEY] TO ANOTHER ON A GUARANTOR'S SECURITY HE [MUST] NOT EXACT PAYMENT FROM THE GUARANTOR. IF, HOWEVER, HE SAID 'ON THE CONDITION THAT I MAY EXACT PAYMENT FROM WHOM I WILL', PAYMENT MAY BE EXACTED FROM THE GUARANTOR. This law applies only to the case44 where the debtor has no property, but where the debtor has property, payment from the guarantor may not be exacted. And [in the case of] a kabbelan,45 even though the debtor has property, payment may be exacted from the kabbelan.
Original footnotes renumbered.
- 'To him' is omitted in the Gemara; v. infra, where it is also shown that the Mishnah contains a lacuna.
- Lit., 'whether so or so'.
- In the first instance.
- By staging a divorce, and the husband having no money, the woman would be enabled to exact the amount of her kethubah from the guarantor.
- And divide the spoil with her.
- Why payment may not be exacted from the guarantor. At present it is assumed that so long as the borrower is alive and did not abscond the guarantor cannot be called upon to pay.
- The debtor; i.e., the creditor has, so to speak, put the debtor in charge of the guarantor who has undertaken to present him when payment falls due.
- Since the debtor neither died nor absconded, the guarantor has carried out his obligation. As the debtor is present in person the claim is to be addressed to him and not to the guarantor.
- The exemption of the guarantor from payment where the debtor himself is available.
- Even where the debtor is in possession of property.
- Lit., 'words'. As the decisions of a Persian court of law are arbitrary, so is the ruling which exempts a guarantor from payment where the debtor is available though destitute. Of what use is the guarantee if the guarantor cannot be called upon to pay where the debtor himself is unable to meet his obligation!
- Lit., 'what'.
- In the first instance the debtor must be called upon to pay. If the obligation, however, has not been met owing to the debtor's poverty, refusal to appear in court, or death, the guarantor must discharge the debt.
- V. infra.
- By his mere verbal undertaking, though it was not attended by a kinyan.
- Gen. XLIII. 9. Thus spake Judah to Jacob in urging him to entrust Benjamin to him.
- [H] 'unconditional assumption of obligation', acceptance'. V. p. 765. n. 10.
- 'Into my hand' implies unconditional responsibility.
- Ibid. XLII, 37. [Although this was said by Reuben, it is unlikely that Judah's guarantee involved less responsibility than that of Reuben's which Jacob had rejected (Maharsha).]
- V. supra, n. 3.
- By mere verbal undertaking, since no legal agreement is mentioned.
- Prov. XX, 16.
- In money matters.
- By insulting or calumniating.
- Ibid. VI. 1-3.
- Lit., 'in thy hand'.
- Lit., 'loosen'.
- I.e., pay him. [H], a play upon [H] (E.V. 'go humble thyself').
- When the claim or grievance is not due to monetary matters.
- Who may plead with him and obtain his pardon. [H] a play upon [H] (E.V. 'urge thy neighbour').
- Lit., 'subjects himself'.
- V. Glos.
- Supra 168a.
- His guarantee to repay the debt is regarded as a mere asmakta, it being assumed that what he meant to convey by it amounted to no more than an expression of his conviction that the debtor would meet his obligation. Had he known that the debtor would default, he would not have given his guarantee.
- Lit., 'actions every day'.
- In accordance with the ruling of R. Judah.
- Though a similar undertaking would elsewhere be regarded as an asmakta which is not legally binding, the pleasure of being trusted transforms such an asmakta into a legal undertaking.
- Lit., 'they did not teach but'.
- [I.e., it is not known whether the debtor has any property from which the creditor could recover his claim, in which case, having regard to the stipulation, the guarantor can immediately be called upon to pay the debt, whereas in the absence of such a stipulation, the creditor would still have first to sue the debtor (Yad Ramah).]
- V. BaH, a l.
- Lit., 'no difference thus'.
- But in either case the guarantor may be called upon to pay. How, then, could Rabba b. Bar Hana assert that the first Tanna speaks only of the case where the debtor had no property?
- Lit., 'and thus it teaches'.
- Lit., 'in what (are the) words said'.
- [H], a guarantor who accepts unconditional responsibility, an 'acceptor'.