The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Batra 168a-b
When is a business agreement so outlandish that the halacha steps in to limit the possibility of such a deal taking place?
The Mishna on today’s daf describes a case where a borrower pays back part of a loan that he owes, and the lender hands the promissory note to a third party in order to assure the borrower that he will not try to collect the full loan with this note. What will happen if the borrower then tells the third party that if he does not pay off the rest of the loan by a specific date, then the note should be returned to the lender so that he can collect the full value? The Mishna relates that in the event that the loan is not paid in full, Rabbi Yossi rules that the third party should turn the note over to the lender; Rabbi Yehuda holds that he should not.
The Gemara explains that this difference of opinion is a question of whether asmachta kanya or not.
An asmachta is a promise or agreement obligating the individual at some point in the future, should a specific event occur. As opposed to ordinary situations of a tenai – a standard agreement, that certainly takes effect – an asmachta usually is an agreement based on the assumption that the condition will never actually take place. We rule like Rabbi Yehuda, who holds that asmachta lo kanya — that it does not take effect.
Why does the halacha keep an asmachta from taking effect?
Rav Saadiah Gaon explains that an asmachta is when the person making the agreement makes an exaggerated offer that goes well beyond what the other party deserves by right, like in our case. Alternatively, an asmachta is a situation where the promise is based on factors that are out of his control entirely (e.g. gambling). In cases like these the halacha determines that the person could not possibly mean to accept the stated terms, so there is no gemirut da’at — no knowledgeable agreement — which is necessary for the transfer of property to take effect.
Bava Batra 169a-b
How much legal significance does a document delineating a gift have?
According to the baraita quoted by our Gemara, Rabban Shimon ben Gamliel rules that if someone gave a present to his friend by means of a shetar matana – a document that delineates the gift – if the document is returned to the first person, the gift is returned to him, as well. The Chachamim say that the gift remains the property of the recipient.
Rabbah explains this difference of opinion as being based on the question of whether or not otiyot niknot be-mesira – literally whether “letters are purchased by transferring them.” Essentially the question is whether transferring a note or contract is sufficient to effect a transaction or if there is a need for a kinyan – a formal act of ownership to take place. According to Rabban Shimon ben Gamliel, otiyot niknot be-mesira, so the gift will be given or returned with the transference of the shetar matana. The Chachamim who disagree believe that once the gift is given and the recipient takes possession of it, transferring the shetar matana to another has no meaning.
The R”i mi-Gash believes that this question only applies to cases where the transfer of the gift was effected solely by means of the shetar matana, with no other kinyan having been done. If, however, there was an associated kinyan that took place, then the role of the shetar was merely to serve as a proof of the transaction, and even Rabban Shimon ben Gamliel would agree that returning the shetar would have no effect on the gift. The Ramah disagrees, arguing that according to Rabban Shimon ben Gamliel the shetar becomes a powerful proof of ownership for the person who is holding it, to the extent that it is possible to suggest that transferring the shetar would be equivalent to transferring the property that it represents.
Bava Batra 170a-b
The Mishna teaches that when someone pays back part of a loan we must find ways to allow him to prove that he no longer owes the full amount. Rabbi Yehuda says that a new note must be written; Rabbi Yossi says that the lender should write a receipt. Rabbi Yehuda objects to Rabbi Yossi’s suggestion because that places the onus of responsibility on the borrower to guard his receipt “from mice” — lest they eat it, or should he lose it in some other way. The Mishna records that Rabbi Yossi responds by saying that it is appropriate for him to have to guard his receipt, so that the other’s rights will not be infringed upon.
All agree that Rabbi Yossi’s statement refers to the fact that having to write a new promissory note with a smaller loan obligation will be to the detriment of the lender. Several possibilities are suggested to explain this.
- Tosafot argue that the new promissory note will have to have the current date on it. Since ordinarily all of the borrower’s property serves to guarantee the loan from the time written in the note, a later date limits the property from which the lender can collect, if the borrower had sold land between the date of the original loan and the new date when the loan was partially paid off.
- The Rashbam believes that the new promissory note will have the earlier date written in it, since that is when the loan was registered. He offers a different explanation, claiming that the lender has a better chance of collecting the loan when there is a larger amount of money written in the note. This is because the fear that the lender will brandish the larger note – with the possibility that a receipt may be lost or destroyed – will serve to encourage the borrower to pay the rest as soon as possible.
- The Ramban offers a variation on this theme, suggesting that a borrower doesn’t really care if he has a small sum outstanding, and he will not hurry to pay off the debt.
Bava Batra 171a-b
On yesterday’s daf we learned that according to Rabbi Yossi the lender should write a receipt for the amount of a loan that was paid up, a position that Rabbi Yehuda did not accept.
The Gemara on today’s daf quotes Rav Huna the son of Rav Yehoshua as teaching that even Rabbi Yossi suggests writing a receipt only in a situation where there was partial payment of the loan. If the loan was paid off in full, rather than writing a receipt, the lender should return the original promissory note to the borrower. The reasoning behind this ruling is straightforward. According to Rabbi Yossi, when only part of the loan is repaid, the best way to ensure the rights of both the borrower and the lender is by writing a receipt. When the loan is paid in full, however, there is a better way to ensure that justice will be done – simply by returning and destroying the original promissory note that is no longer valid.
This reasoning notwithstanding, the Gemara concludes that we follow the opinion of Rabbi Yochanan and Reish Lakish who agree that we do write a receipt, for if we did not, what recourse would a lender have in the event that the original promissory note was lost or destroyed? Would the borrower be freed of his obligation to pay simply because he cannot return the note?
Abayye objects to this argument, claiming that now the borrower is put in a situation where he must fear that if he loses the receipt the lender may discover the original note and demand payment. Rava responds by quoting the passage in Mishlei (22:7) that states how a borrower is subservient to the lender.
Rav Yaakov Emden points out that Abayye’s objection has another weakness to it. The case that he presents assumes that the lender will want to cheat the borrower and collect the loan twice. We do not ordinarily assume that people will try to steal from one-another. Rav Emden argues that in all of the cases where the Gemara expresses concern lest the borrower demand more than is due to him, it is not because we are afraid of deceit, rather it is because we are concerned that people forget what transpired or that they leave loans as part of their estate and the people who inherit do not know that payment has already been made.
Bava Batra 172a-b
When collecting a debt based on producing a promissory note, how clear and transparent must the names in the document be?
The Mishna on today’s daf teaches that if there are two people in a city who share the same name – the example suggested is “Yosef ben Shimon” they cannot produce a promissory note on each other, nor can anyone else demand payment from one of them based on a note in which his name appears. The suggestion made by the Mishna is that they should add their grandfather’s name to their name, or alternatively, include some distinguishing feature about them (e.g. “tall,” “thin,” etc.) or their families.
The Ri”f points out that this ruling is the continuation of a number of rulings that appear in the Mishna that list factors that will keep someone from claiming what is rightly his simply because he is unable to prove conclusively who the document refers to.
It is interesting to note that the Mishna emphasizes that these two people with identical names lived in the same city. This precludes the possibility that someone can claim that a note presented requiring him to pay back a loan may refer to someone with the same name who lives in another place, and, as the Piskei ha-Ri”d points out – implies that it was necessary to include the individual’s address in the document when it was written and signed. This law is clear in cases of gittin – divorce documents – but is less clear in cases of business transactions. In fact, the Ramban disagrees and does not require that business contracts include a person’s place.
The halacha that keeps these two people from lending money to one-another is explained by the Rashbam as stemming from a concern that when one demands payment from the other based on the note that he is holding, the accused borrower may claim that he was, in fact, the original lender, and that the note being produced allegedly proving that he borrowed money is simply the note that he returned to the lender when he received payment of the original loan. Therefore the situation can only be rectified by using other methods to clarify who was borrowing and who was lending.
Bava Batra 173a-b
The Mishna on today’s daf focuses on the role of an arev – someone who agrees to guarantee a loan. According to the Mishna, although the arev agreed to be responsible for the loan, nevertheless the lender cannot collect from him without first trying to collect from the borrower. In a case where the lender states clearly at the time of the loan that he wants to collect from either one of them, then he has the right to do so. Rabban Shimon ben Gamliel disagrees, ruling that in any case the lender must first collect from the borrower.
According to the conclusion of the Gemara, even the Tanna Kamma agrees that under ordinary circumstances when the borrower has the means to pay the loan, the lender cannot collect from the arev. The Gemara explains that the only disagreement between the Tanna Kamma and Rabban Shimon ben Gamliel is in the case of a kablan, that is, someone who says “give him a loan and I will pay you back.”
In explanation of the obligation of an arev to pay the loan in the event that the borrower cannot, Ameimar suggests that it is a case of asmachta. As we learned above (daf 168), an asmachta is a promise or agreement obligating the individual at some point in the future, should a specific event occur. As opposed to ordinary situations of a tenai – a standard agreement, that certainly takes effect – an asmachta usually is an agreement based on the assumption that the condition will never actually take place. In our case we can assume that the arev anticipates that the borrower will pay the loan and that he does not really expect to pay.
According to this approach, whether or not an arev may actually have to pay should be dependent on the question of whether asmachta kanya or not. Rav Ashi rejects this approach, arguing that we rule that an asmachta does not create an obligation, yet people do co-sign loans. He concludes that in this case, the very fact that the arev is relied upon is sufficient to create the gemirut da’at – a conscious decision – necessary to overcome the doubts of the arev and to obligate him to pay.
Bava Batra 174a-b
The Mishna (173b) taught a halacha presented by Rabban Shimon ben Gamliel in the interest of protecting the interests of the arev – individual who guaranteed payment – in the case of a ketubah. When a couple gets married, the marriage contract guarantees payment to the wife in the event of her husband’s death or divorce. If the ketubah payment was made by the arev rather than by the husband himself, Rabban Shimon ben Gamliel required the husband to take a vow that his ex-wife can no longer derive benefit from him. This was done in order to avoid the possibility that the couple would conspire to have the arev pay her so that they could then remarry.
In illustrating this ruling, the Gemara tells of a man named Moshe bar Atzari who had agreed to guarantee his daughter-in-law’s ketubah. His son, Rav Huna was in difficult financial straits, and Abayye raised the idea that he should divorce his wife, and after his father paid the ketubah he should remarry her. When Rava pointed out that he would be required to take the vow according to Rabban Shimon ben Gamliel’s ruling, Abayye argues that if they got divorced out of court, no one would require him to do so. In the end, it turned out that it was a family of kohanim, so it would have been impossible for him to divorce and remarry his wife.
The Gemara expresses shock at Abayye’s suggestion, given that Abayye is known to refer to someone who recommends such a course of action in a similar case (see above, daf 137b) as a rasha arum – an evil trickster. The Gemara responds that this case is unique because Rav Huna’s father certainly wanted to help out his son, especially since he was a scholar.
The Rashbam explains that he is a rasha (an evildoer) because he negates the wishes of the person who gave him the gift, and he is arum (a trickster) because he can successfully arrange for the gift to end up in the hands of another. He adds that Abayye only applies this appellation to someone who advises to do this. The person who does it, who is simply looking out for his own interests, would not be considered a rasha for doing this.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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