בבא בתרא דף קעד

רבן שמעון בן גמליאל אומר: אם יש נכסים ללוה – אחד זה ואחד זה לא יפרע מהן.

Rabban Shimon ben Gamliel says: If the debtor has property, in both this case and in that case, i.e., whether the guarantor is a standard guarantor or an unconditional guarantor, the creditor cannot collect the debt from either type of guarantor.

אמר רבה בר חנה אמר רבי יוחנן: כל מקום ששנה רבן שמעון בן גמליאל במשנתנו – הלכה כמותו; חוץ מערב, וצידן, וראיה אחרונה.

Rabba bar Ḥana says that Rabbi Yoḥanan says: Wherever Rabban Shimon ben Gamliel taught a halakha in the corpus of our Mishna, the halakha is in accordance with his opinion, except for the following three cases: The responsibility of the guarantor, and the incident that occurred in the city of Tzaidan (see Gittin 74a), and the dispute with regard to evidence in the final disagreement (see Sanhedrin 31a).

אמר רב הונא: ״הלוהו ואני ערב״; ״הלוהו ואני פורע״; ״הלוהו ואני חייב״; ״הלוהו ואני נותן״ – כולן לשון ערבות הן.

§ The Gemara discusses which expressions confer upon a person the status of a standard guarantor, and which confer the status of an unconditional guarantor. Rav Huna says that if one says to a potential creditor: Lend money to him and I am a guarantor, or: Lend money to him and I will repay the debt, or: Lend money to him and I am obligated to repay the debt, or: Lend money to him and I will give the money back to you, all these are expressions that confer the status of a standard guarantee.

״תן לו ואני קבלן״; ״תן לו ואני פורע״; ״תן לו ואני חייב״; ״תן לו ואני נותן״ – כולן לשון קבלנות הן.

If one says: Give money to him and I am an unconditional guarantor, or: Give money to him and I will repay the debt, or: Give money to him and I am obligated to repay the debt, or: Give money to him and I will give the money back to you, all these are expressions that confer the status of an unconditional guarantee. The usage of the word give, as opposed to lend, confers the status of an unconditional guarantor.

איבעיא להו: ״הלוהו ואני קבלן״; ״תן לו ואני ערב״ – מאי?

A dilemma was raised before the Sages: What is the halakha if one says: Lend money to him and I am an unconditional guarantor? On the one hand, the word lend is used, as opposed to give, but on the other hand, he explicitly states that he will be an unconditional guarantor. What is the halakha if one says: Give money to him and I am a guarantor? On the one hand, the word give is used, as opposed to lend, but on the other hand, he states that he will be a guarantor.

אמר רבי יצחק: לשון ערבות – ערבות, לשון קבלנות – קבלנות.

Rabbi Yitzḥak says in resolving this dilemma: When one employs the language of a standard guarantee, it is a standard guarantee, even if he also used the word give. And when one employs the language of an unconditional guarantee, it is an unconditional guarantee, even if he also used the word lend.

רב חסדא אמר: כולן לשון קבלנות הן, בר מ״הלוהו ואני ערב״.

Rav Ḥisda says: All of the expressions mentioned in this discussion are expressions of an unconditional guarantee, except for: Lend money to him and I am a guarantor.

רבא אמר: כולן לשון ערבות הן, בר מ״תן לו ואני נותן״.

Rava says: All of the expressions mentioned in this discussion are expressions of a standard guarantee, except for: Give money to him and I will give the money back to you.

אמר ליה מר בר אמימר לרב אשי, הכי אמר אבא: ״תן לו ואני נותן״ – אין למלוה על הלוה כלום.

Mar bar Ameimar said to Rav Ashi: My father said the following: If one says: Give money to him and I will give the money back to you, this expression binds the guarantor to such an extent that the lender has no claim against the debtor at all; his only option is to collect the debt from the guarantor.

ולא היא; לא מיפטר לוה מיניה דמלוה, עד שישא ויתן ביד.

The Gemara rejects this last statement: But that is not so. Rather, the debtor is not exempted from dealing with the creditor unless the guarantor takes the money from the creditor and gives it to the debtor with his own hand.

ההוא דיינא דאחתיה למלוה לנכסי [דלוה] מקמי דלתבעיה ללוה, סלקיה רב חנין בריה דרב ייבא.

§ The Gemara relates: There was once a certain judge who permitted a creditor to enter the debtor’s property and collect it for his debt before lodging a claim against the debtor himself. Rav Ḥanin, son of Rav Yeiva, overruled that judge and expelled the creditor from the seized property.

אמר רבא: מאן חכים למעבד כי הא מילתא, אי לאו רב חנין בריה דרב ייבא! קסבר: נכסיה דבר איניש – אינון מערבין יתיה; ותנן:

When Rava heard about this he said: Who is wise enough to perform such a matter, i.e., to issue this ruling, if not Rav Ḥanin, son of Rav Yeiva? He holds that a person’s property is a guarantee for him, i.e., it acts as a guarantor for the loan if the debtor does not repay it; and we learned in the mishna: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor. And we established that the mishna means that he cannot collect the debt from the guarantor at the outset, before seeking payment from the debtor himself. So too, he cannot collect the debt by taking the debtor’s property without first seeking payment from the debtor himself.

המלוה את חבירו על ידי ערב – לא יפרע מן הערב, וקיימא לן: לא יתבע ערב תחלה.

ההוא ערבא דיתמי, דפרעיה למלוה מקמי דלודעינהו ליתמי;

§ The Gemara relates: There was once a certain guarantor for orphans whose father borrowed money and died, and the orphans were minors, and this guarantor repaid the debt to the creditor before informing the orphans that he was repaying the debt for them. The guarantor now sought reimbursement from the orphans.

אמר רב פפא: פריעת בעל חוב מצוה, ויתמי לאו בני מיעבד מצוה נינהו.

Rav Pappa said: Repaying a creditor is a mitzva, and orphans who are minors are not obligated in performing a mitzva. They therefore do not have to repay any debts owed by their deceased father until they reach the age of majority.

ורב הונא בריה דרב יהושע אמר: אימר צררי אתפסיה.

And Rav Huna, son of Rav Yehoshua, also said that the orphans do not have to repay the guarantor until reaching majority, but for a different reason: Say that perhaps the deceased gave bundles of money to his creditor before his death, and therefore some or all of the debt has been paid. As long as they are minors, the heirs would not be aware of this payment, but upon reaching majority there is a chance that they may examine their father’s papers and discover that their father had done this. Therefore, payment is deferred until they reach majority.

מאי בינייהו?

The Gemara asks: What is the difference between the opinion of Rav Pappa and that of Rav Huna, son of Yehoshua, as both agree that the orphans are exempt from repaying the debt until they reach majority?

איכא בינייהו כשחייב מודה. אי נמי, דשמתוהו ומת בשמתיה.

The Gemara answers: The difference between them is in a case where the one who owed the money, i.e., the deceased, admits explicitly just before his death that he did not yet repay any of his loan. Alternatively, there is a difference between them in a case where the court excommunicated the deceased for not cooperating with the court in repaying his debt, and he died while still in a state of excommunication, which demonstrates that the debt had not been repaid prior to his death. In both of these cases Rav Pappa would exempt the minor orphans from payment, as minors are not obligated to perform mitzvot, while Rav Huna, son of Yehoshua, would require them to repay the debt immediately, as there is no possibility that their father had repaid the debt.

שלחו מתם: שמתוהו ומת בשמתיה, הלכתא כרב הונא בריה דרב יהושע.

The Sages of Eretz Yisrael sent a ruling from there to Babylonia: In a case where the court had excommunicated a debtor for not cooperating in repaying his debt, and the debtor died while still in a state of excommunication, the halakha is in accordance with the opinion of Rav Huna, son of Rav Yehoshua, and the orphans must repay the debt immediately.

מיתיבי: ערב שהיה שטר חוב יוצא מתחת ידו – אינו גובה. ואם כתוב בו: ״התקבלתי ממך״ – גובה.

The Gemara raises an objection from a baraita (Tosefta 11:15): A guarantor for a debt who has the promissory note for that debt in his possession, indicating that he has repaid the debt, and now seeks reimbursement from the debtor, cannot collect if the debtor has died and the obligation for the debt has fallen to his minor heirs. But if it is written by the creditor in the promissory note: I received repayment from you, the guarantor, then the guarantor can collect the debt from the minor heirs.

בשלמא לרב הונא בריה דרב יהושע – משכחת לה כשחייב מודה, אלא לרב פפא – קשיא!

The Gemara explains the objection: Granted, according to the opinion of Rav Huna, son of Rav Yehoshua, you find a case where the minor heirs would be required to repay the debt, such as when the one who owed the money, i.e., the deceased, admits explicitly just before his death that he did not yet repay the loan. But according to the opinion of Rav Pappa, who maintains that minor heirs never have to repay their father’s debts, it is difficult. What is the case discussed in the baraita?

שאני התם, להכי טרח וכתב ליה ״התקבלתי״.

The Gemara answers: It is different there, as it is for this reason that the creditor troubled himself and wrote for the guarantor: I received repayment from you. Once the creditor writes this in the promissory note, it attains the status of a promissory note of the guarantor held directly against the debtor, and even Rav Pappa agrees that a debt that is recorded in a promissory note can be collected from the deceased’s property immediately, even from the minor heirs.

ההוא ערבא דגוי דפרעיה לגוי מקמי דלתבעינהו ליתמי. אמר ליה רב מרדכי לרב אשי, הכי אמר אבימי מהגרוניא משמיה דרבא: אפילו למאן דאמר חיישינן לצררי – הני

The Gemara relates: There was a certain guarantor who had guaranteed a loan given by a gentile, who repaid the gentile creditor before the gentile creditor claimed repayment from the orphans who survived the debtor. The guarantor now sought reimbursement from the orphans. Rav Mordekhai said to Rav Ashi: This is what Avimi of Hagronya said in the name of Rava: Even according to the one who says that we are concerned for the possibility that the deceased may have given bundles of money to the creditor before his death, this statement applies only in the case of a Jewish creditor. But in the case of a gentile creditor, since according to gentile law he is entitled to go directly to a guarantor, we are not concerned for the possibility that the deceased may have given bundles of money. The debtor would not repay the gentile before the loan is due, as the latter has the right to collect directly from the guarantor, and would thereby receive double payment.

מילי ישראל; אבל גוי, כיון דבתר ערבא אזיל – לא חיישינן לצררי.

אמר ליה: אדרבה! אפילו למאן דאמר לא חיישינן לצררי – הני מילי ישראל; אבל גוים, כיון דדינייהו בתר ערבא אזלי, אי לאו דאתפסיה צררי מעיקרא – לא

Rav Ashi said to Rav Mordekhai: On the contrary, even according to the one who says that we are not concerned for the possibility that the deceased may have given bundles of money, this statement applies only in the case of a Jewish creditor. But in the case of a gentile creditor, since according to gentile law they are entitled to go directly to a guarantor, no guarantor would accept upon himself to guarantee such a loan if the debtor had not given bundles of money as collateral to the gentile creditor from the outset.

הוה מקבל ליה.

וכן היה רבן שמעון בן גמליאל אומר: הערב לאשה בכתובתה [וכו׳]. משה בר עצרי ערבא דכתובתה דכלתיה הוה. רב הונא בריה – צורבא מדרבנן הוה,

§ The mishna teaches: And so Rabban Shimon ben Gamliel would say: If there is a guarantor for a woman for her marriage contract, and her husband is divorcing her, the husband must take a vow prohibiting himself from deriving any benefit from her so that he can never remarry her. The Gemara relates an incident pertaining to this ruling: Someone named Moshe bar Atzari was a guarantor for the marriage contract of his daughter-in-law, guaranteeing the money promised by his son in the event of death or divorce. His son, named Rav Huna, was a young Torah scholar, and was in financial straits. Abaye said: Is there no one who will go advise Rav Huna that he should divorce his wife, and she will go and collect her marriage contract from Rav Huna’s father, and then Rav Huna should remarry her?

ודחיקא ליה מילתא. אמר אביי: ליכא דניזיל דנסביה עצה לרב הונא, דנגרשה לדביתהו ותיזיל ותגבי כתובה מאבוה, והדר נהדרה?

אמר ליה רבא: והא ״ידירנה הנאה״ תנן! אמר ליה אביי: אטו כל דמגרש – בבי דינא מגרש?

Rava said to Abaye: But didn’t we learn in the mishna that when a husband divorces his wife in such circumstances he must take a vow prohibiting himself from deriving any benefit from her, thereby precluding the possibility of remarriage? Abaye said to him: Is that to say that everyone who divorces his wife divorces her in a court? Rav Huna could be advised to divorce his wife outside the court, in which case he could do so without being forced to take the prescribed vow.

לסוף איגלאי מילתא דכהן הוא. אמר אביי, היינו דאמרי אינשי: בתר עניא אזלא עניותא.

Ultimately, it was revealed that this Rav Huna was a priest, who may not marry a divorcée, even his own ex-wife. Abaye’s suggestion was therefore not an option for him. Upon hearing this, Abaye said: This is in accordance with the adage that people say: Poverty follows the poor.

ומי אמר אביי הכי? והא אמר אביי: איזהו ״רשע ערום״? זה המשיא עצה למכור בנכסים כרבן שמעון בן גמליאל!

The Gemara asks: But did Abaye really say this? Would he really encourage giving such advice? But doesn’t Abaye himself say: Who is a cunning, wicked person? This is one who provides advice to sell property in accordance with the ruling of Rabban Shimon ben Gamliel. As taught elsewhere (Ketubot 95b), if one says: My property is hereby bequeathed to you, and after you die it will pass to so-and-so, Rabban Shimon ben Gamliel rules that the first recipient can sell the property, which would thereby deprive the second recipient from receiving it. Abaye said that giving advice to someone to pursue such action, though it is legally sound, is considered wicked. Here as well, why would he give advice to Rav Huna to divorce his wife only in order to force his father to pay the marriage contract?

בנו שאני, וצורבא מרבנן שאני.

The Gemara answers: When dealing with one’s son it is different. It is not considered wickedness to force a father to give money to his own son. Moreover, when dealing with a Torah scholar it is different. It is not considered wickedness to procure money for a Torah scholar, because the money enables him to pursue his studies.

והא ערב הוא, [וקיימא לן] ערב דכתובה לא משתעבד! קבלן הוה.

The Gemara asks another question with regard to this incident: But wasn’t Moshe bar Atzari a guarantor? And we maintain, as the Gemara will soon note, that a guarantor for a marriage contract does not become obligated to pay. The Gemara answers: He was an unconditional guarantor.

הניחא למאן דאמר: קבלן דכתובה – אף על גב דלית ליה נכסי לבעל, משתעבד – שפיר. אלא למאן דאמר: אי אית ליה משתעבד,

The Gemara objects: This works out well according to the one who says that an unconditional guarantor for a marriage contract becomes obligated to pay it even if the husband has no property of his own at the time of the marriage. According to this opinion all is well. But according to the one who says: If the husband has his own property the unconditional guarantor becomes obligated to pay, but if the husband does not have his own property he does not become obligated, what is there to say? Rav Huna obviously did not have any property of his own. Why, then, was his father held responsible for paying his marriage contract according to this latter opinion?

אי לית ליה לא משתעבד – מאי איכא למימר?

איבעית אימא: מיהוי הוה ליה, ואישתדוף. ואיבעית אימא: אבא לגבי בריה – שעבודי משעבד נפשיה.

The Gemara answers: If you wish, say that Rav Huna had property when he got married, so that his father’s guarantee took effect, but it became blighted, i.e., it was ruined or lost in the interim. And if you wish, say instead: A father, vis-à-vis his son, sincerely obligates himself to guarantee his marriage contract, even when the son has no property of his own.

דאיתמר: ערב דכתובה – דברי הכל לא משתעבד. קבלן דבעל חוב – דברי הכל משתעבד. קבלן דכתובה, וערב דבעל חוב – פליגי; מר סבר:

The Gemara elaborates on the issue under discussion. This is as it was stated: Everyone agrees that a standard guarantor for a marriage contract does not become obligated to pay the marriage contract, and everyone agrees that an unconditional guarantor for a creditor, i.e., for a loan, becomes obligated to repay the loan. With regard to an unconditional guarantor for a marriage contract and a standard guarantor for a creditor, the Sages disagree. One Sage holds that if the debtor or husband has his own property, these guarantors become obligated for the guarantees they have undertaken, but if he does not have his own property the guarantor does not become obligated. And one Sage holds that whether the debtor or husband has property or does not have property, the guarantor becomes obligated to pay it.

אי אית ליה נכסי ללוה – משתעבד, אי לית ליה – לא משתעבד; ומר סבר: בין אית ליה ובין לית ליה – משתעבד.

והלכתא: ערב – בין אית ליה ובין לית ליה, משתעבד; בר מערב דכתובה – דאף על גב דאית ליה לבעל, לא משתעבד. מאי טעמא? מצוה הוא דעבד,

And the halakha is that a guarantor becomes obligated to pay, whether the debtor has his own property or does not have property. This is to the exclusion of a guarantor for a marriage contract, in which case even if the husband has his own property he does not become obligated to pay. What is the reason for this? The intention of the guarantor is to perform the mitzva of facilitating a marriage by encouraging the woman to consent to the marriage as a result of his involvement, but he does not truly intend to obligate himself. And furthermore, in contrast to a guarantor for a loan, where the creditor stands to suffer a loss if he is not repaid, the woman does not suffer any concrete loss, as the husband does not borrow money from the woman. Therefore, the level of commitment of the guarantor in this case is lower. Accordingly, the Sages instituted that the guarantor does not become responsible for payment of the marriage contract from his own property.

ולאו מידי חסרה.

אמר רב הונא: שכיב מרע שהקדיש כל נכסיו, ואמר ״מנה לפלוני בידי״ – נאמן; חזקה אין אדם עושה קנוניא על הקדש.

§ Rav Huna says that a person on his deathbed who consecrated all his property to the Temple treasury, and then says: So-and-so has one hundred dinars in my possession, i.e., I owe one hundred dinars to so-and-so, is deemed credible, and the money is to be repaid to that person. The reason for this is that there is a presumption that a person does not collude against the Temple treasury. He would not lie about owing money to someone, thereby causing a loss to the Temple treasury.

מתקיף לה רב נחמן: וכי אדם עושה קנוניא על בניו?! דרב ושמואל דאמרי תרוייהו: שכיב מרע שאמר ״מנה לפלוני בידי״; אמר ״תנו״ – נותנין.

Rav Naḥman objects to this ruling: And does a person collude against his children? Of course not. Yet, as Rav and Shmuel both say that in the case of a person on his deathbed who says: So-and-so has one hundred dinars in my possession, only if he says explicitly: Give him the money, the children give it, but if he did not say explicitly: Give him the money, the children do not give it. The person on his deathbed is not assumed to be telling the truth about owing the money unless he explicitly instructs that the money be given. Apparently, then, it is assumed that a person is prone to make false statements so as not to make his sons appear sated, i.e., wealthy. A person on his deathbed may falsely claim that he is in debt in order to dispel the notion that his children are wealthy heirs.

לא אמר ״תנו״ – אין נותנין. אלמא אדם עשוי שלא להשביע את בניו;