Babylonian Talmud: Tractate Gittin

Folio 50a

With regard to a kabbelan for a debt, all are agreed that he does become responsible.¹  With regard to a surety for a debt and a kabbelan for a Kethubah there is a difference of opinion, some holding that even though [the debtor] had no property they become responsible, and others holding that if he had effects they become responsible, but if he had no effects they do not. The law in all these cases is that even if [the debtor] had no property [the surety or go-between] becomes responsible, save in the case of the surety for a Kethubah, who does not become responsible even if [the husband] has effects. The reason is that he performs a pious action,²  and he does not cause the woman any loss.³

Rabina said:⁴  Let us look at the basis of our regulation. It is that more than the man desires to marry the woman desires to be married. Now if you suppose [that the Mishnah refers] to orphans [when it says that the woman collects from the poorest land], then the reason would be that they are orphans. Is this not a refutation of Mar Zutra? — It is.⁵

Mar Zutra the son of R. Nahman said in the name of R. Nahman: If a claim is made from orphans on the strength of a bond [given by their father], even though the best land is mentioned in it, payment can be recovered only from the worst. Abaye said: The proof of this⁶  is that although a creditor has ordinarily the right to collect from medium land, from orphans he can recover only from the worst land. Said Raba to him: Is this really so?⁷  According to Scriptural law, a creditor can claim only from the worst land, as laid down by 'Ulla; for 'Ulla said, 'The Torah has enacted that a creditor should collect from the worst land. For it says Thou shalt stand without, and the man⁸  etc. What would a man naturally bring out in such a case? His least valuable articles. Why then did they [the Rabbis] say that a creditor should collect from medium property? So as not to place obstacles in the way of borrowers. Where orphans are concerned, however, they left the law as it was laid down in the Torah.'⁹  But here, since according to the Torah he can claim from the best land,¹⁰  [I should say that] from orphans also he can claim from the best land? How can Raba [maintain this], seeing that Abram [of] Hozae¹¹  learnt, 'Claims on orphans can be recovered only from their poorest land, even if these are in [compensation] for damage,' and the law that compensation for damage can be claimed from the best is of the Torah? — We are presuming here¹²  that the best of the claimant was only equal to the worst of the defendant, and are following R. Ishmael who said that the law of the Torah is that we should assess on the property of the claimant, but to prevent abuses the Rabbis ordained that the assessment should be made on the property of the defendant, and where orphans were concerned [the Rabbis] left the law as laid down in the Torah. Still did not R. Eliezer the Nabatean state that 'payment recoverable from the property of orphans can be claimed only from their worst land, even if it is the best'? Now what is meant by the words, 'even if it is the best'? Does it not mean, 'even if the best is stipulated in the bond'?¹³  — No; what is meant by 'the best' here is the strips of the best,¹⁴  even as [mentioned also by] Raba. For Raba said: 'If the damage was done to the worst land, the claimant recovers from the best; if to the strips of the best, he recovers from the medium.'¹⁵  Where orphans however were concerned the Rabbis left the law as laid down in the Torah.¹⁶

PAYMENT FROM ORPHANS CAN BE RECOVERED ONLY FROM THE POOREST LAND. R. Ahadboi b. Ammi asked: Are the orphans spoken of here minors, or are grown-ups also included? [That is to say,] were the Rabbis here taking a measure for [the protection of] orphans,¹⁷  in which case they meant it to apply only to minor orphans but not to grown-ups, or was their reason that a lender does not ordinarily take into account the risk of the debtor dying and leaving his property to his orphans, so that there is no question of placing obstacles¹⁸  in the way of borrowers,¹⁹  and [consequently the regulation applies] to grown-ups also? — Come and hear what Abaye the elder stated, viz., that the orphans spoken of here mean grown-ups, and a fortiori the rule applies to minors. But perhaps this statement [was made] in connection with the administering of an oath,²⁰  because a grown-up is also like a child in relation to his father's affairs,²¹  and this is not [the rule for payment out of] lowest-grade land? The law however is

1. In all circumstances.
2. By enabling a marriage to be consummated.
3. In so far as she does not actually part with anything. For fuller notes on this section v. B.B. (Sonc. ed., p. 770.
4. Referring to the original statement of Mar Zutra, that save in the case of orphans, a Kethubah is collected from medium land.
5. And we therefore interpret the Mishnah to mean that a Kethubah is in all cases collected only from the worst land.
6. That such a stipulation is of no avail where orphans are concerned.
7. That such a stipulation is of no avail.
8. Deut. XXIV, 11.
9. V. B.K. 8a.
10. In virtue of the stipulation.
11. V. infra p. 413, n. 1.
12. In the teaching of R. Abram of Hozae.
13. This refutes Mar Zutra's ruling.
14. Strips of good land adjoining a river reserved for pasturage and therefore liable to be overflowed, and so of less real value than even the worst land. V. Tosaf.
15. This land being so very inferior.
16. This last statement is not part of Raba's statement but explains the reason of R. Eleazar the Nabatean.
17. So that their guardians should exert themselves to dispose of their worst land.
18. Lit., 'so that this should bar the door'.
19. Even if the lender knows that in case of the borrower dying he will only be able to recover from the worst land, whether the orphans are minors or grown up.
20. I.e., with the rule that anyone claiming from orphans a debt contracted by their father, even if he produced a bond, had to take an oath. V. Shebu. 41b.
21. I.e., he cannot be expected to know whether his father had paid the debt or not.

that the orphans spoken of are grown-ups, and the rule applies a fortiori to minors, whether in connection with an oath or [with payment out of] the worst land.

PAYMENT CANNOT BE RECOVERED FROM MORTGAGED PROPERTY WHEN THERE ARE FREE ASSETS AVAILABLE. R. Ahadboi b. Ammi asked: What is the rule in the case of a gift? Are we to say that this regulation was made for the protection of purchasers¹  against loss and it therefore does not apply to a gift,²  where there is no question of loss to purchasers, or do we say this even in the case of a gift for if the recipient did not derive some benefit from it it would not have been given to him and therefore his loss is on the same footing as the loss of the purchaser? — [In reply] Mar Kashisha the son of R. Hisda said to R. Ashi: Come and hear 'If a dying man says, Give two hundred zuz to So-and-so, three hundred to So-and-so, and four hundred to So-and-so, we do not say that one who is mentioned earlier in the deed has a superior title to one who is mentioned later.³  Consequently if a bond is produced against the donor [after his death], the claimant can collect from all of them. If, however, he said, Give two hundred zuz to So-and-so and then⁴  to So-and-so and then to So-and-so, we do say that whoever is mentioned earlier in the deed has the better title. Consequently if a bond is produced against the donor, the claimant collects first from the last recipient; if he has not enough, he comes on to the one before him, and if he has not enough, to the one before him;'⁵  and even though [so it would appear] the first was given medium land and the last poor land, [the claimant] has to collect from the poor before the medium.⁶  This shows, [does it not], that the Rabbis meant their regulation to apply to a gift also?⁷  — [Not necessarily, as] we may here be speaking of the payment of debts [and not of a gift].⁸  But the man said 'give'? — He meant, 'Give in payment of my debt.' If so, we can see whose bond is prior? — We assume there is no bond. But [the passage quoted] says, 'Whoever is mentioned earlier in the deed'? — This means, the deed containing his instructions. Or if you like I can say the reference is also to a gift, and still there is no difficulty, since the words 'he collects from the last' mean, 'only the last [of the three] is the ultimate loser.'⁹  Or if you like again I can say that the gifts of all were equal.¹⁰

INDEMNIFICATION FOR PRODUCE CONSUMED CANNOT BE ENFORCED etc. What is the reason? — 'Ulla said in the name of Resh Lakish: Because these¹¹  were not mentioned [in the deed of sale].¹²  Said R. Abba to 'Ulla: But what of the maintenance of a woman and her daughters which is taken as written¹³  and yet [the Mishnah] states that it is not enforceable? — He replied: The regulation¹⁴  was so framed from the outset they are taken as written so far as concerns free assets but not so far as concerns property on which there is a lien. R. Assi also stated in the name of R. Johanan¹⁵  that [the reason is] because they were not mentioned in the deed. Said R. Zera to R. Assi: But what of the maintenance of wife and daughters which also is taken as written and yet [the Mishnah] states that it is not enforceable? — He replied. The regulation was so framed from the outset: they are taken as written where free assets are concerned, but not where there is a lien on the property. R. Hanina, however, said: [The reason is] because they are not of a definite [amount].¹⁶  The question was raised: In order [that a debt may be enforceable from property on which there is a lien] does R. Hanina require that it should be both definite and written down,

1. Who bought land from a man after he had contracted a debt to a third party.
2. And recovery can he made from land which has been given away, even if there are free assets available.
3. Tosaf. points out that if the three gifts were equal we should say that he intended the earlier to take precedence, as otherwise he would have said, Give six hundred zuz to So-and-so and So-and-so and So-and-so.
4. Lit., 'and after him.'
5. V. B.B. 138a.
6. In spite of the fact that a creditor can collect from medium land.
7. Since the last gift was a 'free' asset by comparison with the first.
8. I.e., we do not say in the case of a gift that a creditor cannot collect from the gift when there are free assets available.
9. [The phrase, that is to say, does not mean that he collects only from the last, for where the first was the recipient of medium land and the last poor land, he would certainly be entitled to collect from the first, since the rabbinic regulation does not apply to a gift. What the phrase does mean is that only the last is the ultimate loser because the first can, after all, come on to him for what the creditor has taken from him.]
10. And only in this case can the first recipient force the creditor to recover first of all from the last.
11. The improvements and crops.
12. Implying that if they were, it would be enforceable. The deed is that given by the robber to the purchaser. V. supra p. 216, n. 3.
13. V. Mishnah Keth. 52b.
14. Relating to the maintenance of wife and daughters.
15. Who here consequently agrees with Resh Lakish.
16. [The exact quantity of the produce to be raised hereafter could not be known when the field was first appropriated, and therefore subsequent purchasers could not be expected to allow a sufficient margin for their indemnification. On this view, they would not be enforceable even if mentioned in the deed.]