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Gitin, 50

GITIN 49 & 50 - Sponsored by Rabbi Dr. Eli Turkel and his wife, Jeri Turkel. May Hashem bless them with many years of Simcha, health and fulfillment, and may they see all of their children and grandchildren follow them in the ways of Torah and Yir'as Shamayim!


QUESTION: The Gemara cites a dispute among Amora'im regarding a Shtar Chov (a deed of debt) in which a borrower wrote explicitly that he permits the lender to collect the debt from his Idis (high quality) property, even though a debt is normally collected only from Beinonis. Abaye and Mar Zutra rule that in such a case if the borrower dies and the lender comes to collect the debt from the Yesomim, he may collect only from the Ziburis and not from the Idis, like the law of anyone who collects a debt from Yesomim. Rava argues and says that whenever anyone collects from Yesomim, mid'Oraisa the Yesomim need to pay only from Ziburis, because, mid'Oraisa, when a loan is granted only Ziburis land becomes Meshu'abad (collateralized) to the repayment of the loan. It was the Rabanan who required that the borrower pay back with Beinonis land. Thus, when the borrower has died and the obligation to pay back the loan falls upon the Yesomim, the Rabanan suspended their requirement that a loan must be paid back with Beinonis and they allowed the Yesomim to pay with Ziburis, in accordance with the d'Oraisa requirement. However, says Rava, when the borrower wrote explicitly in the Shtar that he agrees to pay from Idis, then his Idis becomes Meshu'abad *mid'Oraisa* to the repayment of the loan. Since this Shi'abud on the Idis property is a Shi'abud d'Oraisa, even when the Yesomim pay back the loan they must pay back with Idis! This is the view of Rava.

Why, though, should the Yesomim have to pay back the loan with land of Idis? When a person writes in his Shtar that he agrees to pay back his loan with Idis, such a commitment should only obligate *him* to pay from Idis, and not his Yesomim! Why does Rava assume that even after the borrower dies, and the Yesomim have to pay the loan, that the Yesomim must also pay from Idis *mid'Oraisa*? After all, there is a Machlokes (in the end of Bava Basra) whether "Shibuda d'Oraisa" or not - whether a Shi'abud (the obligation of Yesomim to pay the debts of their father from the land they inherited) is mid'Oraisa or mid'Rabanan. The opinion that holds that the Shi'abud is only mid'Rabanan asserts that there is absolutely no obligation, mid'Oraisa, for the Yesomim to pay the debt from the property that they inherited, because there is no concept of Shi'abud in the Torah itself. Why, then, in a case where the Yesomim inherit the loan after the borrower dies, should Rava maintain that their obligation to pay Idis is mid'Oraisa? If we hold that a Shi'abud is *not* mid'Oraisa, then any obligation that they have is only mid'Rabanan! (TOSFOS DH Keivan)


(a) RASHI (DH Keivan d'Dinei) explains the concept of Shi'abud of one's property in a new light. We learned earlier on the Daf that there is a concept of "Arvus," where one person becomes an "Arev" and obligates himself to pay back the debts of another person. This is a d'Oraisa obligation, as the Gemara says in Bava Basra (173b). Rashi explains that just like a person can become obligated to repay someone else's debts, *land* itself can become obligated, so to speak, to pay the debts of its owner, through the concept of Arvus; the land itself becomes an Arev. In other words, the obligation to repay the debt falls upon the land itself, the property of a person, in the event that the person himself cannot pay it (for example, he dies or has no money). Since Arvus is a Torah concept, Rashi says, land can also become an Arev mid'Oraisa, and therefore it is clear that if one specifies a Shi'abud on his property, the Shi'abud will take effect and his property will be obligated to pay back the loan in the event that the person does not.

Following this line of logic, the obvious extention is that Rashi would hold that a person can obligate his property (by making a Shi'abud on his property) to pay back the loan, even if we rule that "Shibuda Lav d'Oraisa," that the Shi'abud that comes automatically with every loan is not mid'Oraisa. Rashi, in fact, says this in Kidushin (13b, DH Lav d'Oraisa), as the RASHBA there explains Rashi's words. What, then, does it mean to say that "Shibuda Lav d'Oraisa?" It means that no Shi'abud is created *automatically* when a person borrows money, whether through a Shtar or not. If a person does specify that he wants to create a Shi'abud and make his property into an Arev, then he may do so, and his property does become obligated to repay the loan.

Hence, according to Rashi, a person may make a Shi'abud on property of Idis even though mid'Oraisa only his Beinonis or Ziburis is obligated to repay the loan, because the property can become an Arev. In the same vein, Rashi in Kidushin says that a person may create an obligation on his property for his Yesomim to pay back the debt, even if we hold that "Shibuda Lav d'Oraisa," by specifying in the conditions of the loan that he wants to make his property Meshu'abad. As the SEFER HA'MIKNEH in Kidushin points out, these two points are related, and Rashi here is following his own view in Kidushin.

This explains why, in our Sugya, Rashi will hold that when a person specifies that he wants his Idis to become Meshu'abad, it will become Meshu'abad even for his heirs to pay back with Idis, since he made his property an Arev and it is Meshu'abad to the loan - even if we hold that "Shibuda Lav d'Oraisa."

This is also the view of the RASHBA here who agrees with Rashi both here and in Kidushin and says that a person can make a Shi'abud mid'Oraisa by specifying the Shi'abud, even though normally a Shi'abud is not mid'Oraisa. The same logic also explains the case of Avram Choza'a, in which the Gemara assumes that since there is a Chiyuv mid'Oraisa to pay for Nezikin, damages, with Idis, the Yesomim also have a Chiyuv to pay back with Idis. This is because of the same logic: even though Shibuda is mid'Rabanan, nevertheless, once a Shi'abud takes effect on property, such as in the case of Nezikin where there certainly is a Shi'abud mid'Oraisa to pay from Idis, that means that the land is an Arev. Consequently, even the Yesomim will have to pay from those fields. (See PNEI YEHOSHUA)

(b) TOSFOS (DH Keivan), however, explains that the reason Rava assumes that when a person specifies Idis in the Shtar, the Yesomim are obligated mid'Oraisa to pay back the loan with Idis, is because Rava holds that "Shibuda mid'Oraisa." If a Shi'abud would be mid'Rabanan, then there indeed would *not* be a Chiyuv for the Yesomim to pay back from Idis!

Tosfos seems to be following this opinion in the end of Bava Basra (175b, DH Dvar Torah) where he writes that even if one specifies in the Shtar that he accepts upon himself Acharayos, according to the opinion that holds Shibuda is not mid'Oraisa, no Acharayos is created. This is also the opinion of the RITVA in Kidushin (13b) who explains that the opinion that holds "Shibuda Lav d'Oraisa" maintains that a Shi'abud -- meaning an act of Kinyan to obligate himself to pay back from a certain property if one does not have enough money to pay back on his own -- is not a full Kinyan, because he is not actually giving anything over to the lender at the time of the loan. He is merely saying that if he does not have money of his own to pay back, then the lender may come and collect from those who purchased land from him (the Lekuchos) or from his heirs (the Yesomim). Since a full Kinyan has not been executed, but rather a "half-Kinyan" ("Kinyan l'Chatza'in"), so to speak, it therefore has no binding effect.

That is the view of the opinion that holds that "Shibuda Lav d'Oraisa." Since that opinion maintains that it is impossible to make a Kinyan of Shi'abud because it is a "Kinyan l'Chatza'in, even if the borrower specifies in his Shtar that he wants there to be a Shi'abud, there will be no Shi'abud. The reason is because a Shi'abud is not a Kinyan; it is not something that represents a transaction of any sort, and therefore it is meaningless. The RITVA explains that this point is the basis for the argument among the Amora'im regarding whether Shi'abud is mid'Oraisa or mid'Rabanan. The opinion which holds that Shi'abud is mid'Oraisa holds that a Shi'abud is not a half-Kinyan, but that it is a full Kinyan that is "Mitla Tali v'Kai" - it is "hanging" and waiting to see if it will take effect (either from this point on ("mi'Kan ul'ha'Ba"), according to Rava in Pesachim (30b), or retroactively ("l'Mafrei'a"), according to Abaye there). It is a "hanging" Kinyan, a Kinyan in waiting, and not half of a Kinyan. The opinion that holds that Shi'abud is not d'Oraisa, on the other hand, holds that it is not a Kinyan and it cannot be created even if the borrower specifies such a Shi'abud in a Shtar.

It is clear from the Ritva and Tosfos that they maintain that land cannot become an Arev. Only a person can become an Arev; property cannot become an Arev. Hence, the only question is whether or not there has been a Kinyan.

This opinion of the Ritva does not contradict what the Ritva cites in our Sugya. In our Sugya, the Ritva (K'sav Yad) cites from the RAMAH and RAMBAN that if the borrower writes specifically in the Shtar that he is going to pay back with Idis and that even his heirs will have to pay back with Idis, then the Shtar *does* obligate the heirs to pay back with Idis, even according to Abaye and Mar Zutra. This is also the opinion of the TOSFOS RID. According to these Rishonim, the Machlokes between Abaye and Rava is whether the father's intention was to be Meshabed his Idis only for himself while he was alive, or even for after he dies. If his intention was to be Meshabed his Idis for after he dies, then certainly the children must pay from Idis, because the enactment of the Rabanan to be lenient with Yesomim and to collect from Ziburis does not override what the father specified explicitly. These Rishonim learn this from a Sugya in Kesuvos (87a) which says that when a father specifies that his wife should collect her Kesuvah after his death without having to make a Shevu'ah, she indeed may collect it without a Shevu'ah, and the husband's edict overrides the Rabanan's enactment that she must make a Shevu'ah before collecting her Kesuvah from Yesomim.

The wording of the Ritva here is that when the father specifies that he wants the Yesomim to pay from Idis, it is a "Tenai b'Davar she'b'Mamon," a condition stipulated regarding a monetary matter, and such a condition is binding and it overrides the normal halachah. However, this does not contradict what the Ritva writes when he writes that a person cannot create a Shi'abud on himself for the following reason. The Ritva here does not mean that if Shibuda is not mid'Oraisa, then when the borrower specifies that the debt should be collected from the Idis of his Yesomim after he dies he creates a Shi'abud on them mid'Oraisa. Rather, the same Shi'abud that he can create on himself he can create on the Yesomim: If Shibuda is not d'Oraisa, then he can create only a Shi'abud mid'Rabanan on his Yesomim, and if Shibuda is mid'Oraisa, then he can create a Shi'abud mid'Oraisa on his Yesomim. Although the Ritva in Kidushin explains that Shi'abud is a type of a Kinyan according to the opinion that Shibuda is d'Oraisa, presumably also the Shi'abud d'Rabanan that the Rabanan created (according to the opinion that Shibuda is not mid'Oraisa) is a type of a Kinyan that is hanging. Why, then, does he write here that it is a Tenai, a condition? It seems that the Ritva does not really mean here that it is literally a Tenai, a condition, that the borrower stipulated. Rather he means that it is a *Kinyan* of Shi'abud, but since the Kinyan is not fully effective, it is hanging and waiting to see whether the lender collects from it, therefore he refers to it as a Tenai, rather than as a full-fledged Kinyan. This seems obvious from the fact that if it would be a Tenai, then how could the borrower obligate his heirs to pay back with the condition that he makes? He cannot make a condition that he is borrowing money on condition that his heirs pay back with Idis, for he cannot tell them what to do!

However, the ME'IRI (Bava Basra 175b, Kidushin 13b) writes that even if Shibuda is not mid'Oraisa, the borrower can create a Shi'abud if he desires, because he can make a *Tenai* in the loan saying that the lender can collect the land from Lekuchos and from Yesomim through a Shi'abud.

This is a very difficult concept to understand. How can a Tenai obligate those who purchase land from the borrower, or those who inherit land from the borrower, pay back his loan? They cannot be bound by his Tenai! And if Shibuda is not mid'Oraisa, then why does the Me'iri write that the borrower can create a Shi'abud d'Oraisa (by writing his desire to do so in the Shtar) because of the concept of Tenai?

It is possible that the Me'iri means that when a person makes a Tenai that he is going to pay back land for his debt if he has no money with which to pay, and that the lender may collect from Lekuchos, then, later, when the borrower sells his land, it is as if he makes a condition in the sale that the creditor is permitted to collected this property as payment for the loan. When the borrower sells his property, he is not selling it with regard to the Shi'abud that the lender has on it. The Me'iri might maintain that there is such a thing as a "Kinyan Peros" on land, that one can own the land only with regard to its Shi'abud, that is, for the right to collect from it if the borrower has no money. This is similar to what the Gemara discusses earlier concerning whether a person may sell his Eved only for the right to receive the Kenas that might come in case the Eved gets killed by an ox. In the same way, a person can sell his property with regard to its Shi'abud. That is what a person does when he makes a Tenai that his creditor may collect from his land. It is just like giving the land to the creditor only for the right to collect the loan from it in case there is no money to collect. Hence, when the Yesomim or Lekuchos get that property (after the loan), they do not have the right to stop the creditor from collecting from it, because the creditor already owns the land with regard to the right to collect from it if the borrower does not have money with which to pay back his loan.


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