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Babylonian Talmud: Tractate Baba BathraRABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT MAY BE EXACTED neither from the one nor from the other.1 Rabbah b. Bar Hana said in the name of R. Johanan: Wherever Rabban Simeon b. Gamaliel taught in our Mishnah, the halachah is in agreement with his ruling2 except [in the cases of] 'guarantor',3 'zidon'4 and the 'latter proof'.5 R. Huna said: [Should one say], 'Lend him [a sum of money] and I [shall be] guarantor'. 'Lend him and I [shall] repay [you]', 'Lend him and I [shall be] liable [for the loan]', [or] 'Lend him and I [shall] give [it back to you]' — all these are expressions of guarantee.6 [If, however, one said], 'Give him [a sum of money] and I [shall be] kabbelan'.7 'Give him and I shall repay [you]', 'Give him and I [shall be] liable [for the loan]', [or] 'Give him and I [shall] give [it back to you]' — all these are expressions of kabbelanuth.8 The question was raised: What [is the law if one said], 'Lend him9 and I [shall be] kabbelan'7 [or], 'Give him and I [shall be] guarantor'?10 — R. Isaac replied: The expression of guarantee [has the force of a] guarantee; the expression of kabbelanuth11 I [has the force of] acceptance.12 R. Hisda said: All of these are expressions of kabbelanuth, except [that] of 'Lend him [a sum of money] and I [shall be] guarantor'.13 Raba said: All of these are expressions of 'guarantee', except that of 'Give him and I [shall] give [it back to you]'.14 Mar b. Amemar said to R. Ashi: Father said thus: [If one said,] 'Give him [a sum of money] and I [shall] give [it back to you]', the creditor has no claim whatsoever against the borrower. The law,15 however, is not [so]; [for] a debtor cannot escape from the creditor unless [the guarantor] had taken [the money] with [his own] hand [from the creditor] and delivered [it to the borrower]. A certain judge once allowed a creditor to take possession16 of the property of the debtor before [that] debtor had been sued. [The matter having been brought to his notice,] R. Hanin the son of R. Yeba removed him.17 Said Raba: Who [would have been so] wise [as] to do such a thing if not R. Hanin the son of R. Yeba! He holds the opinion that a man's possessions are his surety, and we have learnt, IF [A MAN] LENDS [MONEY] TO ANOTHER ON A GUARANTOR'S SECURITY, HE MUST NOT EXACT PAYMENT FROM THE GUARANTOR, and this18 has been established [to mean that] the guarantor may not be called upon first.19 A certain guarantor of orphans20 once paid the creditor before the orphans were sued.21 Said R. Papa: The repayment [of a verbal loan to] a creditor is a commandment, and orphans22 are not subject to the performance of commandments.23 But R. Huna son of R. Joshua said:24 It may be assumed [that] he25 deposited with him26 [some] bundles [of valuables].27
Baba Bathra 174bWhat [is the practical difference] between them?1 — [The difference] between them is [the case] where the debtor admitted [liability],2 or3 where he was placed under the ban4 and died [while still] under the ban.5 [A message] was sent from Palestine:6 [Where one] was placed under a ban5 and died under the ban, the law is in accordance with [the view of] R. Huna the son of R. Joshua.7 An objection was raised: A guarantor who produced8 a bond of indebtedness9 cannot exact payment.10 If, however, it contains the entry,11 'I12 received13 from you' he14 may exact payment.15 [Now], according to R. Huna the son of R. Joshua one can well understand [this law]16 to be applicable in the case where the debtor had admitted [liability].17 According to R. Papa.18 however, there is a difficulty!19 — There it is different; since20 he21 took the trouble to write22 for him, 'I received,'23 for this [very object].24 A certain guarantor to a gentile once paid the gentile before he sued the orphans.25 Said R. Mordecai to R. Ashi:26 Thus said Abimi of Hagronia27 in the name of Raba: Even according to him who said [that the possibility that] bundles [of valuables were deposited with the creditor was] to be taken into consideration,28 this is only applicable to29 an Israelite,30 but [in the case of] a Gentile, since he [invariably] goes [for payment] to the guarantor31 [the possibility that] bundles [of valuables were deposited with the creditor] need not be taken into consideration.32 [The other]33 said unto him: On the contrary; even according to him who said that [the possibility that] bundles [of valuables were deposited with the creditor] need not be taken into consideration, this is only applicable to34 an Israelite, but [in the case of] gentiles, since their judges [invariably] go to the guarantor, [it may be taken for granted] that had not [the debtor] deposited with him35 [some] bundles [of valuables] at the outset, he would not have accepted [any responsibility whatsoever].36 AND SO SAID R. SIMEON B. GAMALIEL: WHERE [A MAN] IS GUARANTOR FOR A WOMAN IN [RESPECT OF] HER KETHUBAH ETC. Moses b. Azri was guarantor for the kethubah of his daughter-in-law. Now his son, R. Huna, was a scholar but in poor circumstances.37 Said Abaye: Is there no one who would go and advise R. Huna to divorce his wife, so that she might go and collect her kethubah from his father, and then re-marry her?38 'But,' said Raba to him, 'have we [not] learned that [the husband] MUST VOW TO DERIVE NO [FURTHER] BENEFIT FROM HER?' 'Does everyone who divorces [his wife]', said Abaye to him, 'do it39 at a court of law?'40 Finally, [however], it was discovered that he41 was a priest.42 'This is just what people say', exclaimed Abaye, 'poverty follows the poor'.43 Could Abaye have said such a thing?44 Surely Abaye had said, 'Who is a cunning rogue? He who counsels to sell an estate, in accordance with R. Simeon b. Gamaliel'!45 — [The case of] one's son is different, and [the case of] a scholar is [also] different. But, surely, he46 [was only] a guarantor, and a guarantor for a kethubah, it has been definitely established,47 is not responsible for payment? — He was a kabbelan.48 This [reply] would be quite correct according to him who said that, though the husband had no property, a kabbelan for a kethubah is responsible for payment; what, however, can be replied according to him who said [that] he is responsible for payment [only] where the [husband]49 has [property], but is not responsible for payment where the husband has not?50 — If you wish, I might say: [R. Huna] did have property51 but it was struck with blast. And if you prefer, I might Say: A father in the case of his son always undertakes responsibility,52 for it was stated: A guarantor for a kethubah is, in the opinion53 of all, not responsible for payment;54 a kabbelan for a creditor is, in the opinion of all, responsible for payment; [in the case, however, of] a kabbelan for a kethubah or a guarantor for a creditor, there is a dispute. [One] Master holds that he55 is responsible only where the debtor has property, but if he has none, he is not responsible;56 and the [other] Master holds that he55 is responsible whether [the debtor] has, or has not any property. And the law [is that a guarantor] is responsible for payment in all57 [cases],58 with the exception of a guarantor for a kethubah who is not responsible for payment even though the husband possessed property. What is the reason? — He59 was [merely] performing a religious act60 and [the woman]61 had lost nothing.62 R. Huna said: If a dying man consecrated all his property and then stated 'I owe63 a maneh to X', he is believed, because it is known that no one would form a conspiracy against sacred property.64 R. Nahman demurred: Would a person form a conspiracy against his children65 and yet both Rab and Samuel stated that if a dying man said, 'I owe a maneh to X', if he [specifically] added, 'Give [it to him]', it is to be given, but if he did not [specifically] say, 'Give', it is not to be given,66 from this it clearly follows [that] a person is wont to disclaim wealth for67 his children; - To Next Folio -
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