What difference, though, does it make whether Reuven comes to court or not?
If there is a valid claim which can prevent the Malveh from collecting, then
why does Shimon not use that claim without bringing Reuven to court? (Reuven
could always tell Shimon the claim out of court and let Shimon make the
claim himself in court.)
(a) RASHI here (and in Kesuvos and Bava Kama) explains that the reason
Reuven would have to come to court is because he has a claim of *certainty*
("Bari") that he is claiming against the Malveh's Shtar. Shimon, who does
not know the details first hand, can at best make a tentative claim
("Shema") and say that "I *think* that the Shtar is not valid" (because
Reuven paid you or because you owed money to Reuven for some other reason
and therefore that paid for the debt). A claim of "Shema" will have no
validity against the Shtar. Reuven, though, can present a claim of certainty
("Ta'anas Vadai"), for the Rabanan instituted a Shevu'as Heses whenever
someone challenges a claimant who has a "Ta'anas Vadai." Therefore, only
Reuven can cause the Malveh to swear a Shevu'as Heses in court.
TOSFOS RABEINU PERETZ asks what difference does it make if Reuven can cause
the Malveh to swear a Shevu'as Heses? The Malveh must swear to *Shimon*,
anyway, before collecting from him, because the Rabanan instituted a
different Shevu'ah, requiring anyone who collects a debt from Yesomim or
Lekuchos to swear that he was not paid already for the debt. (The Rabanan
enacted that we speak up for the Lekuchos, who are not expected to know how
to counter the claim.)
TOSFOS in Kesuvos (92b) answers that the difference that Rashi gives for
when Reuven makes the claim instead of Shimon (i.e. the ability to make the
Malveh swear a Shevu'as Heses) will apply where Shimon was Mochel to the
Malveh the Shevu'ah of Lekuchos. In such a case, only Reuven can make the
Malveh swear, through a "Ta'anas Vadai" and a Shevu'as Heses.
(b) TOSFOS explains that the difference might be in a case where Shimon
announces in court that he has no evidence to disprove the claim of the
Malveh. If afterwards he does try to bring testimony, we do not accept it
(Sanhedrin 31a). Reuven, who never announced that he had no witnesses, may
still bring witnesses to court to disprove the Malveh.
(c) The RASHBA and NIMUKEI YOSEF (in Bava Kama) and the RAN here explain
that the reason Shimon might need Reuven to make the claim for him in court
is because of a case where the land that Shimon bought is an Apotiki for the
loan. The Halachah is that a buyer cannot redeem land that is an Apotiki for
a loan -- the Malveh is entitled the take the land itself. The borrower,
though, may redeem the Apotiki by paying back, with money, the loan that he
received, and thereby prevent the Malveh from collecting the Apotiki.
Therefore, if Reuven comes to court and says that he will pay back the loan
to the Malveh, he can prevent Shimon from losing the property.
However, if this is the case, then why is Reuven, the borrower, permitted to
become involved in the case for the benefit of Shimon? We only permit Reuven
to become involved since Shimon's loss affects Reuven, since Reuven will
need to reimburse Shimon if he loses the land. If Reuven is agreeing to pay
the loan, then it should make no difference to him whether Shimon wins the
case or the Malveh wins; in either case he will have to pay someone back --
either the Malveh or Shimon!
They answer that it will still be to the benefit of Reuven for Shimon not to
lose his land, because when a Malveh collects land, he prices the land at
the value that it was worth at the time that Shimon purchased it. If it
naturally rose in value (without Shimon investing anything into it) before
the time that the Malveh takes it from Shimon, then the Malveh keeps the
profit. Shimon, though, may claim from Reuven, the borrower, *full*
reimbursement of his loss, including the rise of value. Therefore, if Shimon
loses his field, Reuven will have to pay more than if Reuven just pays back
the original loan.
(d) TOSFOS here further suggests that there would be a difference in the
case of a Gilgul Shevu'ah. If, for some different case in which they are
involved, the Malveh needs to make a Shevu'ah d'Oraisa to Reuven, the
borrower, then Reuven can then make the Malveh make a Shevu'ah *d'Oraisa*
that he did not yet receive the loan repayment, through the Halachah
d'Oraisa of "Gilgul Shevu'ah." This will make the Shevu'ah more severe than
a Shevu'ah d'Rabanan, and therefore it is to Shimon's benefit for Reuven to
come to court.
The ME'IRI cites others who suggest, in a similar vein, that the practical
difference would be in a case where Reuven has other claims for which he
wants to make the Malveh swear. If Reuven represents this case for Shimon,
then he may make the Malveh swear to his other claims as well through the
Halachah of Gilgul Shevu'ah (d'Rabanan). (According to the Me'iri, Reuven is
coming to court for his own benefit, and not for Shimon's benefit as the
(e) TOSFOS RABEINU PERETZ and TOSFOS here explain that it is beneficial for
Reuven to come to court, simply because he is more knowledgeable than Shimon
and he might think of a claim that Shimon might not think of. Why does
Reuven need to come to court, though? Let Reuven simply make suggestions to
Shimon and Shimon can then make the claims for himself!
Perhaps the court would not let Reuven advise Shimon in the middle of the
case, because the Mishnah in Avos (1:8), cited in Kesuvos (52b), teaches
that a person should not act like "Orchei ha'Dayanim."
Tosfos here suggests further that a person may insist that his opponent come
with him to a greater Beis Din. If Reuven has the strength to go to a
greater Beis Din, and Shimon does not have the strength, then Reuven may
insist that the Malveh go with him to a greater Beis Din.
In addition, Tosfos suggests that it is beneficial for Reuven to argue the
case in Beis Din because the Malveh might not be so brazen as to lie to
Reuven's face and say that he was never repaid, whereas he would be brazen
to lie to Shimon and say that he was never repaid, since Shimon does not
know the truth.
(f) The RITVA upholds one of the differences that Tosfos here refutes.
Tosfos says that it is incorrect to say that a difference between whether
Reuven goes to court against the Malveh or whether Shimon goes to court is
when the witnesses who can testify that Reuven paid back the loan are
relatives of Shimon, and thus Shimon cannot bring them to court. They are
unrelated to Reuven, though, and therefore he can bring them to testify.
Tosfos refutes this, saying that since the outcome of their testimony will
also benefit Shimon (letting him keep the land that he bought from Reuven),
these witnesses may not testify even for Reuven. Tosfos proves from the
Gemara in Makos (7a) that the witnesses in such a case -- where their
testimony is given primarily for an unrelated person, but it will affect a
relative -- may not testify for the unrelated person. The Gemara there
discusses a case of a debt in which the witnesses testifying on behalf of
the Loveh were related to the *guarantor* of the Loveh. The Gemara there
says that the witnesses are *invalid* in that case and may not testify on
behalf of the Loveh or Malveh, because if the Loveh has no money to pay back
the debt, the Malveh will go to guarantor to collect the money.
The Ritva says that there is a difference between our case and the case in
Makos. In the case in Makos, the guarantor's property is also Meshu'abad to
the loan, and thus when the witnesses testify about the loan, their
testimony directly affects the guarantor. In the case of our Gemara, though,
Shimon -- who bought the field from Reuven -- has nothing to do with the
loan, and his property is not Meshu'abad to the loan. The witnesses,
therefore, should be permitted to testify that Reuven paid back the loan,
even though as a result of that testimony Shimon, their relative, will be
able to keep the land that he bought from Reuven. Their testimony is about
the repayment of the loan, which has nothing to do with Shimon. Therefore,
says the Ritva, this case can also be a difference between whether Reuven
goes to court against the Malveh or Shimon goes to court.