Babylonian Talmud: Tractate Baba Bathra

Folio 157a

said: They said [this]¹  in [respect of] a week-day.²  and how much more so in the case of the Sabbath.³  Similarly: One may acquire ownership on behalf of [a person who is] of age,⁴  but not on behalf of a minor;⁵  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,⁶  '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.⁷

MISHNAH. [IN THE CASE WHERE] A HOUSE⁸  COLLAPSED UPON A MAN⁹  AND HIS FATHER OR UPON A MAN⁹  AND THOSE WHOSE HEIR HE IS,¹⁰  AND [THAT PERSON] HAD AGAINST HIM [THE CLAIM OF] A WOMAN'S KETHUBAH¹¹  OR [THAT OF] A CREDITOR;¹²  [AND, IN THE FIRST CASE]. THE HEIRS OF THE FATHER PLEAD [THAT] THE SON DIED FIRST AND THE FATHER AFTERWARDS,¹³  WHILE THE CREDITORS PLEAD [THAT] THE FATHER DIED FIRST AND THE SON AFTERWARDS,¹⁴  BETH SHAMMAI HOLD¹⁵  [THAT THE AMOUNT IN DISPUTE IS] TO BE DIVIDED,¹⁶  AND BETH HILLEL HOLD¹⁷  [THAT] THE ESTATE [IS TO REMAIN] IN ITS FORMER STATUS.¹⁸

GEMARA. We learnt elsewhere: He who lends [money] to another on a bond¹⁹  [is entitled to] collect [his debt] from [the borrower's] lands [even though they were subsequently] mortgaged.²⁰  [If, however, the loan was made] in the presence²¹  of witnesses²²  it may be collected from free²³  property [only].²⁴  Samuel inquired: What [is the law in the case where the borrower entered in the bond]. 'that I may acquire'.²⁵  and he acquired?²⁶  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.²⁷  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.²⁸

R. Joseph said, Come and hear: And the Sages Say: This [creditor] who sold him²⁹  the land³⁰  was prudent, because thereby³¹  he was in a position to take from him a pledge.³²  Raba said to him: You mean,³³  'from him'!³⁴  From him³⁵  [surely], even the cloak that is upon his shoulders [may be seized]!³⁶  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?³⁷

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 KETHUBAH 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'!³⁸  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.³⁹

R. Ashi demurred: This [surely] is a verbal loan,⁴⁰  and both Rab and Samuel stated [that] a verbal loan cannot be collected either from the heirs or from the buyers!⁴¹

1. V. loc. cit. n. 10.
2. When writing and acquisition are permissible.
3. When these are not permissible and some provision has to be made for giving legal force to the dying man's wishes.
4. Cf. p. 681, n. 17.
5. Cf. loc. cit. n. 16.
6. For notes on R. Judah's version, v. our Mishnah supra 156b.
7. R. Judah's version of the respective views of R. Eliezer and R. Joshua follows that recorded in the Mishnah.
8. Lit., 'the'.
9. Lit., 'upon him'.
10. E.g., brothers or other relatives who had no other heirs but him.
11. The marriage contract of his widow.
12. But he left neither money nor possessions wherewith to meet his obligations.
13. The son did not consequently inherit from his father whose estate would, therefore, be inherited by his living heirs.
14. Hence, the son inherited his father's estate, and they, as the son's creditors, are entitled to seize it for their debts.
15. Lit., 'say'.
16. The claim of the creditors is considered to be of equal force with that of the heirs.
17. V. note 3.
18. 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'.
19. Even though no security on the lender's real estate had been entered in it.
20. 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).
21. Lit., 'by the hands'.
22. Without a written note.
23. Such as has not been sold or mortgaged.
24. Infra 175a, supra 42a.
25. I.e., not only what be already possesses but also that which he may purchase in the future shall be mortgaged for the debt.
26. After the note had been issued. Is the creditor entitled to seize this property if it was sold?
27. I.e., the lender is entitled to seize any real estate bought and sold after the date of the note.
28. Has a mortgage, according to the Rabbis, more force than a sale, and may the lender, therefore, seize the sold land or not?
29. The borrower.
30. 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.
31. By the sale of the land.
32. 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.
33. [Lit., 'say'. Following the reading of R. Gersh. and MSS.]
34. The borrower.
35. I.e., when the property is still in the borrower's own possession.
36. And no question would arise in such a case.
37. I.e., where the land is no more in the possession of the borrower.
38. 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.
39. 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.
40. 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.
41. 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?

— But [the fact is that] this [Mishnah] represents the view of¹  R. Meir who holds [that] a person may transfer possession of something that is not [yet] in existence.²

R. Jacob of Nehar Pekod³  said in the name of Rabina, Come and hear: Ante-dated bonds of indebtedness are invalid⁴  and post-dated [ones] are valid.⁵  Now, if it could be assumed [that where the bond contained the entry]. 'That I may acquire'. [and] he [subsequently] bought and sold [or where it contained the entry] 'That I may acquire' [and] he [subsequently] bought and transmitted [the purchase] as an inheritance, [the land] is not mortgaged, [to the creditor], why [are] post-dated [bonds] valid?⁶  This [is surely similar to the case of an entry] 'That I may acquire'! — [But] this [may] represent the view of⁷  R. Meir who holds [that] a person may transfer possession of something that is not [yet] in existence.⁸

R. Mesharsheya in the name of Raba said, Come and hear! How [is one to understand the statement that] for improvement of lands [one may not seize any sold property]? If [a person] has sold a field to another who improved it,⁹  and a creditor [of the seller] came and seized it,¹⁰  when [the buyer] collects [from the seller].¹¹  he collects [the value of] the principal [even] from mortgaged property, but [that of the] improvement from free¹²  property [only].¹³  Now, if it is assumed, that where [a bond of indebtedness contained the entry]. 'That I may acquire'. [and] the debtor bought [land] and sold [it, or where the bond contained the entry]. 'That I may acquire'. [and] he bought [land] and transmitted [it] as an inheritance, [that land is] not mortgaged [to the creditor], why does the creditor seize the improvement[s]?¹⁴  — This [may] represent the view of¹⁵  R. Meir who holds [that] a person may transfer possession of something that is not [yet] in the world.

If [a good reason] could be found for the statement¹⁶  [that where there was an entry in a bond of indebtedness], 'That I may acquire'.¹⁷  [and the debtor subsequently] bought [land] and sold [it, or where the bond contained the entry]. 'That I may acquire',¹⁷  [and the debtor subsequently] bought [land] and transmitted it as an inheritance, [that land is] not mortgaged [to the creditor, the question that follows does not arise], since [the land was] not [in any way] mortgaged. If, [however. a reason] could be found for the statement¹⁶  [that such land]¹⁸  is mortgaged [to the creditor, the question arises as to] what [is the ruling in the case where the debtor] borrowed [from one person].¹⁹  and [then] borrowed [from another],²⁰  and then purchased [some real estate which he subsequently sold].²¹  [Is this land] mortgaged to the first [lender],²²  or is it mortgaged to the second?²³  — R. Nahman replied: We [also] have raised the same²⁴  question,²⁵  and [a reply] was sent from Palestine²⁶  [that] the first acquired [the right of seizing that land]. R. Huna said: They²⁷  divide [the land among themselves].²⁸  And Rabbah b. Abbuha also learned [that the land] is to be divided [between them].²⁷

Rabina said: In the first version,²⁹  R. Ashi told us³⁰  [that] the first [creditor] acquired [the right over the land];³¹  the second³²  version of R. Ashi [however], told us [that the land was] to be divided.³³  And the law is [that the land] is to be divided.³³

An objection was raised: How [is one to understand the statement that] for improvement of lands [one may not seize any sold property]? If [a person] has sold a field to another who improved it, and a creditor [of the seller] came and seized it,³⁴  when [the buyer] collects [from the seller]³⁵  he collects [the value of] the principal [even] from sold property but [that of the] improvement from free³⁶  property [only]. Now, if that were so,³⁷  he³⁸  should [only be able to claim] half [the cost of his] improvement!³⁹  — [The expression]. 'he collects', which was used,⁴⁰  also implies half [the value of his] improvement.

1. Lit., 'this according to whom? It is'.
2. While Samuel's enquiry had reference to (v. supra 157a) the view of the Rabbis.
3. [A town east of Nehardea, v. Obermeyer, op. cit., 270ff.]
4. Since the creditor might unjustly seize the lands which the borrower sold between the date entered in the bond and the actual date of the loan. Only those sold after the actual date are legally mortgaged to the creditor.
5. Sheb. X, 5, B.M. 17a, 72a, Sanh, 32a. The creditor, by allowing the entry of a later date, has thereby surrendered his right to seize those lands which the borrower sold between the actual date of the loan and the later date that was entered in the bond.
6. Lands that the borrower bought (say in February) between the real date of the loan (say January) and the later one (say March) that was entered on the bond, though acquired after the date of the loan, and consequently not mortgaged to the creditor, could nevertheless be seized by him from purchasers who bought these (say in April) on the plea that they were bought by the borrower before the date and sold by him after the date of the loan entered on the bond. And since a post-dated bond is valid, despite this possibility, one must conclude that lands bought and sold after the date of a loan are also mortgaged to the creditor,
7. V. supra. p. 685, n. 5.
8. Hence no answer may be derived from it to Samuel's question which had reference to the view of the Rabbis.
9. By manuring, ploughing and sowing.
10. In its improved condition.
11. Compensation for his loss.
12. V. supra p. 683, n. 11.
13. B.M. 14b.
14. The improvements, surely, took place after the loan was made.
15. V. supra p. 685. n. 5.
16. Lit., 'to say'.
17. I.e., the debtor pledged for his loan not only the lands that he already possessed but also those that he may acquire in the future.
18. Bought and sold under the conditions just described, (Cf. previous note).
19. And pledged his present and future possessions. V. supra, n. 3.
20. To whom he gave the same security as to the first.
21. Or transmitted it as an inheritance.
22. Since his security was obtained before the second loan was incurred, he is also entitled to the priority of his claim.
23. Lit., 'last'. As it might be maintained that the hold of the first creditor on the property which was non-existent at the time of the loan is not sufficiently strong to prevent the debtor from withdrawing it from him and assigning it as security to a second creditor.
24. Lit., 'that'.
25. Lit., 'thing'.
26. Lit., 'From there'. The statement was made in Babylonia where Palestine was often referred to as 'there'.
27. The two creditors.
28. The land having been purchased after the second loan, when both creditors had equal security on the debtor's possessions, it must be equally divided between them in proportion to their respective claims.
29. [Thus, Yad Ramah.]
30. He is said to have lived sixty years, and to have concluded at the age of thirty the first version of his lectures, and at the age of sixty (i.e., during the second thirty years of his life), his second version. [V. Letter of Sherira Gaon, ed. Lewin, 93-94. The tradition connecting R. Ashi with the Editorship of the Talmud is based on this statement, v. Brill, N., Jahrbucher, II, 10. Halevy, Doroth, II, 263ff., however, disputes this.]
31. V. supra p. 687, n. 4.
32. Lit., 'last'. Cf. p. 687, n. 14.
33. V. supra p. 687, n. 14.
34. V. supra p. 686, n. 5.
35. V. ibid. n. 6.
36. V. supra p. 683, n. 11.
37. Lit., 'and if there is', i.e., if the law is that the second creditor has equal rights with the first, owing to the fact that the land in question was purchased after the second loan.
38. The buyer.
39. The buyer, who received no less security for his purchase than the creditor for his loan, should have the same rights as the creditor, just as, in the previous case, the second creditor has the same rights as the first. The improvement of the land, which obviously took place after the sale, may be regarded as land purchased by the debtor after the second loan and sold (since the improvement is claimed from him by both, first by the creditor and ultimately by the buyer. and, in either case, it was no more in his possession than the land sold). Accordingly, the creditor and the buyer (like the two creditors supra) are entitled to equal shares. The creditor could thus seize only half the value of the improvement, the other half remaining with the buyer. Why then should be collect from the seller its full value?
40. Lit., 'taught'.