R. Papa said: The law is [that] a verbal loan may be recovered from the heirs1 but may not be recovered from the buyers.2 It 'may be recovered from the heirs' in order that doors might not be locked in the face of borrowers;3 'but may not be recovered from the buyers', because it is not [sufficiently] known.4
[IF A PERSON] PRODUCED AGAINST ANOTHER HIS NOTE-OF-HAND [SHOWING] THAT [THE LATTER] OWED HIM [A SUM OF MONEY]. HE MAY RECOVER [IT] FROM FREE PROPERTY ETC. Rabbah b. Nathan inquired of R. Johanan: What [is the law in the case where] his handwriting5 was legally endorsed at a court of law?6 [The other] replied to him: Although one's handwriting had been legally endorsed at a court of law [the debt] may be recovered from free property only.7
Rami b. Hama raised an objection: [There are] three [kinds of] letters of divorce [which are] invalid;8 but, if [the woman did] remarry, her child is [deemed] legitimate.9 And they are the following: [A letter of divorce] written in the husband's handwriting, which bears no [signatures of] witnesses; [one] bearing [the signatures of] witnesses but no date; [and one] bearing a date and [the signature of] one witness only. These are the three [kinds of] letters of divorce [which are] invalid; did [the woman] however, re-marry, the child is [deemed] legitimate. R. Eleazar said: [A letter of divorce,] although it bears no [signatures of] witnesses but was given10 to the woman11 in the presence of witnesses, is valid;12 and [such a document entitles one to] collect from mortgaged property!13 — There14 it is different, because he15 pledged himself at the very time of writing.16
[IF THE GUARANTEE AND SIGNATURE OF] A GUARANTOR APPEAR BELOW THE SIGNATURES TO BONDS OF INDEBTEDNESS, etc. Rab said: [If the guarantee appears] before the signatures on the bond, [the debt] may be recovered from mortgaged property; if after the signatures on the bond, [it] may be recovered from free property [only]. At times, Rab said: Even [if the guarantee appears] before the signatures on the bond [the debt] may be recovered from free property only. [This, surely, presents] a contradiction [between one ruling] of Rab and the other ruling of his!17 — There is no contradiction. The one18 [refers to the case] where it was entered,19 'X is guarantor'; the other [speaks of a case] where it was entered, 'and X is guarantor'.20
R. Johanan. however, said: Either with the one or with the other21 [the debt] may be recovered from [the guarantor's] free property only; even though it was entered 'and X is guarantor'.
Raba raised an objection: A bill of divorce containing greetings, under which the witnesses have signed, is invalid,22 [because we apprehend that they might have signed the greetings [only];23 and R. Abbahu said: I had the [following] explanation of this law24 from R. Johanan: [The entry.] 'give greetings' [renders the bill] invalid, [but with the entry,] 'and give greetings'25 it is valid'!26 — Here also27 [it is a case] where the entry was,28 'X is guarantor'.29 If so, [this statement] is exactly the same [as that] of Rab!30 — Read,31 'and so said R. Johanan'.32
SUCH A CASE ONCE CAME BEFORE R. ISHMAEL etc. Said Rabbah b. Bar Hana in the name of R. Johanan: Although R. Ishmael praised Ben Nannus,33 the halachah is in accordance with his34 [own view].
A question was raised: What is R. Ishmael's view35 in [the case of] 'throttling'?36 — Come and hear that which R. Jacob said in the name of R. Johanan: R. Ishmael differed in [the case of] 'throttling' also. [Is the] halachah in accordance with his view or is the halachah [in this case] not in accordance with his view? — Come and hear: When Rabin came37 he stated in the name of R. Johanan: R. Ishmael differed in [the case of] 'throttling' also; and the halachah is in accordance with his view in [the case of] 'throttling' also.
Rab Judah said in the name of Samuel; [A guarantor, even in a case of] 'throttling', who was made to enter into a legal obligation,38 assumes responsibility [for the payment of the debt], [from this] it is to be inferred39 that a guarantor generally40 does not require a kinyan.41 And [this is] in disagreement with [the statement] of R. Nahman. for R. Nahman said:
Original footnotes renumbered.
- Of the debtor.
- V. p. 775, n. 15.
- No one would be able to obtain a loan if creditors could not be assured of recovering it from the debtor's heirs.
- V. p. 775, n. 3. Unlike a loan secured by a bond, it is neither made, nor acknowledged in the presence of witnesses nor in the presence of a scribe. Hence no one besides the lender and debtor may ever be aware of its existence. The buyers of the debtor's property must, therefore, be protected against loss not due to any Fault of theirs.
- I.e., the note-of-hand mentioned in our Mishnah.
- Does the endorsement confer upon the creditor the same rights as those of a bond signed by witnesses, and thus entitle him to seize the debtor's mortgaged lands as if the clause pledging security had actually been entered (omission of the clause being regarded as the scribe's error); or does it merely establish the authenticity of the debtor's signature, while the creditor's rights remain unaltered?
- As a note-of-hand that has not been endorsed. The endorsement of a document by a court serves only the purpose of safeguarding its current force so that debtor or witnesses should not subsequently be able to deny their signatures.
- They do not entitle the woman to re-marry.
- The invalidity of the divorce not being so definite as to affect the legitimacy of the child.
- Lit., 'he (the husband) gave it'.
- Lit., 'to her'.
- Because, in R. Eleazar's opinion, the legality of a document depends on the witnesses to its delivery, not on those who signed it.
- Git. 86a. Whether the document be a kethubah or (as has been explained in Git. 22b) a bond of indebtedness, from this it follows that, though no witnesses had signed the bond, the creditor is entitled to seize the debtor's mortgaged property if there were only witnesses testifying to the delivery to him of the bond; much more so when the bond had been endorsed in a court of law which has certainly more power than ordinary witnesses. How, then, could R. Johanan maintain that an endorsement by a court of a note-of hand does not entitle the creditor to the seizure of sold property?
- The Mishnah of Gittin.
- The husband (in case of a divorce), or a creditor (in the case of a bond).
- Of the document, i.e., it was originally written with the intention of delivering it in the presence of witnesses instead of having their signatures on the document. Since witnesses to the delivery confer upon a document the same force as witnesses who sign it, the document is valid. R. Johanan, however, speaks of a note-of-hand given to the creditor sometime after the loan was made as a token of indebtedness. Such a note, not being written in the form of a bond and bearing no signatures of witnesses, cannot transform a verbal loan into one secured by a bond.
- Lit., 'on Rab'.
- Where the guarantor's mortgaged property may not be seized.
- Lit., 'that he wrote in it'.
- In the latter case, 'and' indicates continuation, so that the guarantee forms a part of the bond the whole of which is attested by the witnesses whose signatures appear below. In the former case, the guarantee appears as a detached statement; and the witnesses may, consequently, be regarded as having attested the text of the bond only, exclusive of the guarantee.
- Lit., 'one this and one this', 'whether one or the other', i.e., whether the guarantee is entered above, or below the signatures of the witnesses.
- Lit., 'witnesses who are signed on an enquiry of peace in a letter of divorce'.
- Not the text of the divorce. Tosef., Git. VII.
- Lit., 'to me it was explained'.
- The conjunction, 'and', combining the greetings and the text into one unit.
- The signatures clearly bearing testimony to the entire bill (text of divorce and greetings). Now, since R. Johanan draws here a distinction between the insertion and the omission of the conjunction, how could he be said to hold that there is no such distinction in the case of a guarantee to a bond, and that whether 'and' was, or was not inserted, the debt may be recovered from Free property only?
- A guarantee on a bond, which does not entitle to the seizure of sold property.
- Lit., 'when he wrote'.
- Had the conjunction 'and' been inserted, the guarantee would have assumed full force and the guarantor's sold property also could be seized.
- Rab also draws the same distinction between the insertion, and the omission of the conjunction.
- Lit., 'say'.
- R. Johanan does not differ from, but agrees with Rab.
- Later in the Mishnah.
- R. Ishmael's; that free property may be seized.
- Lit., 'what to me said etc.'.
- The case cited by Ben Nannus in our Mishnah where the guarantee was made after the loan was granted for the purpose of saving the debtor from the creditor's power.
- from Palestine to Babylon.
- Lit., 'and they (witnesses) acquired from him', by means of a kinyan (v. Glos.).
- Since a kinyan is specifically postulated in this case.
- Lit., 'in the world'.
- He assumes responsibility though no kinyan had been effected.
Baba Bathra 176b
only [in the case of] a guarantor appointed by a court of law is no kinyan required;1 in all other cases, however, kinyan is required.
And the law is: [If one] guarantees [a loan] at the time the money is delivered,2 no kinyan is required;3 if, after the money is delivered, kinyan is required;4 [and in the case of] a guarantor appointed by a court of law5 no kinyan is required, for, having regard to the pleasure he has in the confidence reposed in him,6 he [wholeheartedly] determines to shoulder the full responsibility.7
Original footnotes renumbered.
- The reason is given infra.
- I.e., when the loan was made.
- Since the loan was obviously made through trust in the guarantor, he assumes full responsibility.
- To enable the creditor to recoup himself.
- Though after the loan has been made.
- Lit., 'that he is trusted' by the court.
- Lit., 'and subjects himself to him', i.e., to the creditor.