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Kesuvos, 85


QUESTION: The Gemara teaches that a lender can forgive a loan after selling the contract of debt to someone else. That is, Reuven, who loaned money to Shimon, sells the Shtar Chov (contract of debt) to Levi. Reuven can be Mochel (forgive) the debt even after the Shtar is purchased by Levi, and consequently Shimon does not have to pay Levi. (The Gemara on 86a discusses whether or not Reuven has to reimburse Levi.)

How could a person forgive a loan that he has already sold and which is no longer in his possession?


(a) RABEINU CHANANEL (cited anonymously by the RIF, and attributed to Rabeinu Chananel by the Ran) explains that the person who sells the Shtar Chov can cancel the debt even after its sale since he can say that he checked his records and found that the debt had already been paid, or that he is not sure whether or not the debt was already paid.

The Rif and others reject this approach for a number of reasons. First, from the Gemara's wording it seems that the debtor did not say that the debt was paid, but that he is *forgiving* the loan. How can he do that? Second, even if the debtor does admit that the debt was paid, how can that prevent the buyer of the Shtar Chov from collecting it? We learned earlier (19a) that a person's own admission is not believed if it causes a loss to others. If so, the seller should not be able to cause the buyer of the Shtar Chov a loss by "admitting" that there is no longer any debt!

(a) TOSFOS (DH ha'Mocher) in the name of the RI explains that mid'Oraisa a person cannot sell a loan, because it is not an object upon which a Kinyan can be made.

It is true that if the borrower owns property, there can be a Shibud (lien) placed upon the real estate. A lien constitutes a partial Kinyan, and thus it is something that the lender *can* sell. If, however, the borrower has no real estate, then the lender has nothing of the borrower's to sell, since there is no such thing as a lien on movable property (Metaltelin). Therefore, the sale is not valid mid'Oraisa. It is only a rabbinical institution that a person can sell a loan.

Since mid'Oraisa the debt still belongs to Reuven, he is able to forgive it. The Mechilah, which is mid'Oraisa uproots the sale of the loan, since the sale is only mid'Rabanan.

Would the Ri maintain that one *cannot* forgive a debt he has sold if the borrower has real estate? The Ri does not differentiate between whether the borrower actually had land at the time of the sale or not. It seems that since the lender intends to sell the loan alone (and not the Shibud) when the borrower does not have any land and there is no Shibud to sell, so, too, anytime the lender sells a Shtar Chov, his intention is to sell the loan and not the Shibud (even when the borrower does have land).

Tosfos points out that because of this, if a loan is transferred in a manner that works mid'Oraisa, then the lender cannot forgive the loan once it is no longer in his possession. Such a transfer that works mid'Oraisa includes, according to various opinions, a Matnas Shechiv Mera (the gift of a dying person; see Bava Basra 147b, as cited by Tosfos here), a case of Shibuda d'Rebbi Nasan (where Reuven owed someone else money before he lent money to Shimon, he may transfer his loan to his own debtor; see Kesuvos 19a and Tosfos there, DH u'Chegon), and Ma'amad Shelashtan (where the lender transfers the loan in the presence of the borrower; see Gitin 13b and Tosfos there).

(b) Tosfos here writes that RABEINU TAM also rules that the sale of a loan is mid'Rabanan. However, Rabeinu Tam later retracted this view (TOSFOS SHANTZ) and decided that the sale of a loan is valid mid'Oraisa. Why, then, can the lender forgive the loan that is no longer in his possession?

The ROSH (9:10), RAN and other Rishonim write in the name of Rabeinu Tam that the original lender can forgive the loan for a different reason. A loan creates two different Shibudim (obligations) upon the borrower. First, there is a "Shibud ha'Guf" -- the borrower becomes personally obligated to repay the loan that was given to him. It is a personal obligation, which the Gemara (86a) refers to when it says, "Peri'as Ba'al Chov Mitzvah" (the repayment to a debtor is a Mitzvas Aseh). The lender cannot sell this part of the loan.

Second, besides the Shibud ha'Guf, the borrower's property becomes collateral to the lender, so that the lender has the right to collect from any assets that the borrower owns at the time that the loan comes due, whether that property is land or mobile property -- the only requirement is that it be in the borrower's possession, i.e. he has not sold it. (Rabeinu Tam calls this is a "Shibud Nechasim," even though it is not what is usually referred to by the words "Shibud Nechasim." What is usually referred to as "Shibud Nechasim" allows a person to collect from land even after it leaves the borrower's possession, and it does not take effect on mobile property.) The right to collect from the borrower's possessions is based on the principle that "a person's possessions are his guarantors." (Bava Basra 174a). They take responsibility for the repayment of any loans that the person himself fails to repay.

This second Shibud -- the right to collect from the property of the borrower -- *is* transferable, and that is what the lender sells; this sale is valid mid'Oraisa. However, if the lender forgives the loan after the sale, then the Shibud ha'Guf, the first Shibud, which the lender did *not* sell (since it is not transferable), becomes annulled. Once there is no longer a Shibud ha'Guf on the borrower, the Shibud Nechasim is annulled too, since borrower's property is no longer obligated to repay the loan for him if his loan has been annulled. That is why the buyer of the Shtar can no longer collect the debt.

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