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Pesachim 31

PESACHIM 31 - dedicated b'Ahavas ha'Torah by Rav Ari Bergmann of Lawrence, N.Y.


SUMMARY: The Gemara discusses the Halachah of "Metaltelei d'Yasmi Lo Meshabdi" -- the chattel (movable property) of children are not in arrears for the debts of their father. Only *land* of their father's which they inherited can have a lien on it to pay the debt of the father. To demonstrate this point, Rami bar Chama discusses the following scenario.

Normally, when two men, Reuven and Shimon, owe each other money, they can simply hold on to each others money and allow their debts to cancel out. However, if Reuven dies and leaves no land to his children, the situation changes. His children are entitled to collect the debt that Shimon owed to their father, but Shimon is *not* entitled to collect from Reuven's children the debt that Reuven owed to him (since their father left them no land, and they are not obligated to pay with Metaltelin). Shimon ends up having to pay his debt to Reuven, while Reuven's debt to Shimon goes unpaid.

Rava states that if Shimon pays back his debt to the children with land, then the children now have land which Shimon can collect as repayment for the debt owed to him by Reuven. The Gemara infers from this that Shimon's repayment of the debt is retroactive (it is as if he returned the land at the time that he took the original loan), and therefore Reuvain ends up having left land to his children after all. If Shimon's debt to Reuven was incurred at or before the time that Reuven's debt to Shimon was incurred, the land that he gives the children enables him to collect his debt which he otherwise would not have been able to collect.

This is the general point of the Sugya. The exact case that the Gemara addresses is as follows. Shimon bought a field from Reuven, with a guarantee ("Achrayus," see Background to the Daf) that if something happens to the land as a result of Reuven's liability (for example, creditors of Reuven take the land away from Shimon), Reuven will reimburse Shimon. However, Shimon never paid Reuven for the land, but instead kept the money as a loan which he agreed to pay back to Reuven at a later time.

Reuven died, and a creditor indeed came and demanded the land from Shimon as payment for an debt owed to him by Reuven -- thus activating Reuven's guarantee for the field Shimon bought, and obligating Reuven to compensate Shimon for the field. Consequently, *Reuven now owes Shimon* payment for the guarantee on the field, and *Shimon owes Reuven* the original purchase value of the field. This is a good example of a case where two men owe each other money, and one of them died, leaving his children exempt from paying his debt (if they did not inherit land from their father).

QUESTION: The Gemara adds that when Reuven's creditor came to collect the field from Shimon, Shimon did not give the *field itself* to the creditor, but instead he gave him the *value* of the field (in cash). Why did the Gemara add that point? What difference does it make if Shimon gave to the creditor the land or if he gave him money? In either case, Reuven now has the responsibility to reimburse Shimon for the debt that Shimon paid for him! Whether Shimon gave land or cash, a mutual debt is created with Shimon owing money to Reuven and Reuven owing money to Shimon, and Rava's statement -- as to how Shimon can avoid a capital loss -- applies just the same!


(a) TOSFOS (DH u'Payesei) explains that Rami bar Chama is teaching an additional Chidush. If he would have taught that when Shimon paid Reuven's creditor with *land*, he is not entitled to be compensated by Reuven's children (because that do not have any land to give to him), that would have been obvious -- Shimon cannot collect the "Achrayus" from Reuven's children if they did not inherit land! Shimon's debt to Reuven, on the other hand, remains and he is obligated to pay the children the value of the field.

However, now that he pays the creditor with the *value* of the field (i.e. cash), we might have thought that he is not relying on being reimbursed due to the Achrayus on his field, but rather he is giving the *original money* that he kept back when he purchased the field, which is Reuven's own money that Shimon happens to be holding in his hands. That is, he is paying Reuven's money to Reuven's creditor on Reuven's behalf, like a Shali'ach. Therefore, we might think that Shimon is exempt from paying his old debt to the children, since he just passed that money on to Reuven's creditors, as a middleman for Reuven, instead of giving it to the children, and he thus comes out even.

In fact, TOSFOS (DH b'Achrayus) and other Rishonim point out that if -- at the time of the purchase of the land -- Shimon had not kept the money owed for the land as a loan (i.e. he had not *set a later time* for payment), but he had merely delayed paying Reuven, then the money which he would be holding would actually belong to Reuven, and the above ruling would then be true. After Reuven's death, he could give that money straight to the creditor as a way of giving the money to Reuven. However, now that he made the money owed for the field into a loan, he can no longer say that he has Reuven's money in his hands. Rather, he has a *debt* to Reuven. Therefore, Reuven's children can say to Shimon, "We hereby demand the money that you owe us. You gave your own money to our father's creditor, and not our father's money, and we are not obligated to cover the guarantee for you, because we do not have any land."

This is also the intention of RASHI (DH u'Mes Reuven -- "b'Osan Ma'os..." -- and DH Dina Hu).

(b) The MAHARAM CHALAVAH says that if the money for the land was not made into a loan, but Shimon merely delayed paying Reuven, then the reason why Shimon could pay the creditor and thereby exempt himself from paying Reuven's children is *not* because he is simply holding on to Reuven's money, but because he still has the option to *withdraw* from the entire deal, because he has not yet paid for the land and thus the deal has not been consummated. Shimon could say to Reuven's children, "I do not have to pay you the value of the field anymore, because I am withdrawing from the deal and am not buying the land." He keeps the land, though, as reimbursement for Reuven's debt that he paid to the creditor.

If so, the Gemara mentions that he paid money to the creditor instead of giving the field itself only to show what the Halachah would have been had he *not* made the money he was keeping back for the field into a loan. If it was not a loan, then not only could Shimon go back on the deal and give the field to the creditor and not pay Reuven for the field, but he could even give the *value* of the field (in cash) to the creditor and claim that he never bought the field from Reuven, and thus owes nothing to the children. (Why, then, is he keeping the field? He states that when he paid Reuven's money to the creditor, it is as if he gave the field to the creditor and then bought it back.) This is what the Gemara is teaching when it says that Shimon paid Reuven's creditor with money; it is teaching what the Halachah would be if the Shimon had *not* made the value of the field into a loan.

QUESTION: Rava says that if Shimon is clever, he will pay back the debt he owes to the children of Reuven with land and not with money, and then they will have land with which to pay their debt to Shimon. What right does Shimon have to choose to pay back with land? The Gemara says that when repaying a loan, one is not allowed to pay back with land but must give back cash, if he has any (Kesuvos 86a). If so, how can Shimon insist on paying back with land?


(a) RASHI (DH Iy Pike'ach) says that he could *claim* that he has no money but only land.

(b) The MAGID MISHNAH (Hilchos Malveh v'Loveh 11:10) writes that if paying back one's debt with cash will cause the debtor to incur a loss, then he *may* insist on paying back with land. Only when he will not suffer a loss by it, he must pay back with cash.

(c) The RA'AVAD, cited by MAHARAM CHALAVAH and others, explains that Rava holds that if Shimon gives back the *very land* that Reuven sold to him, even though he already made the money for the land into a loan, he may cancel the entire deal. Consequently, by returning the land he has cancelled the loan and does not have to pay cash for any purchase; he merely gives back the land which he decided not to buy. By doing so, Shimon gets to take reclaim the land as reimbursement for paying money on Reuven's behalf to Reuven's creditor.

QUESTION: When a man dies owing money, his children do not have to pay his debt if he did not leave them any land. RASHI (DH Dina Hu) explains why there is an obligation for the children to pay their father's debt only if the children have land, while they do not have to pay their father's debt if all they have is money. Rashi says that the ownership of land is never in doubt; therefore if the children have land which belonged to the father, it is known beyond any doubt that it belonged to the father. Consequently, that land, which belonged to the father, can be collected as repayment for the father's debt. Money in the hands of the children, though, cannot be proven to have belonged to the father. These particular notes of legal tender were not necessarily in the father's possession when he was alive. If they only to the hands of the children after the father died, they have no lien on them -- Shimon borrowed the father's money and not the children's.

Rashi states this opinion more clearly in Bava Kama (14b, DH b'Yasmi), where he says that the reason one may not collect from the chattel (movable property) of children who inherited a debt is because perhaps they bought it after their father's death; that is, it is not known to have belonged to the father. (In fact, the Gemara in Bava Kama says that if a creditor grabbed money without permission from the borrower before the borrower died, even though the creditor may not collect from the money in the hands of the borrower's children, he *may* keep the money he grabbed during the lifetime of the borrower as collection for the loan, because it is known to have belonged to the father.)

How does Rashi apply this logic in our Sugya? Here, the Gemara is assuming at this point that when a creditor collects his money, he is "Goveh l'Mafrei'a" -- the money or property which he collects is considered to have been in his possession, retroactively, from the time that the loan began. If "l'Mafrei'a Hu Goveh," why does Rava say that Shimon must repay Reuven's children with *land* if he wants to be reimbursed for the debt that Reuven owes to him? Even if he pays back with money, the rule that one cannot collect from the children's money does not apply here, because the money that Shimon pays back for his debt will retroactively belong to Reuven. If so, we know for sure that this money belonged to Reuven, the borrower, and Shimon should be able to collect from it! (DEVAR SHMUEL)

ANSWER: Rashi apparently is expressing here a unique opinion. Rashi seems to maintain that we only say "l'Mafrei'a Hu Goveh" when the borrower pays back with *land*. If he pays back with cash (or other movable property), it is not considered to belong to the lender retroactively.

What is the logic behind this? It could be that since at the time of the loan the cash might not have been in Shimon's possession, he cannot give it to Reuven such that it belongs to Reuven from the time of the loan. How can he give Reuven something which he himself does not own at the time? In contrast, there is never any doubt about the ownership of land. If Shimon owned land at the time he took the loan, then there is no doubt whether or not he owned it at that time.

Therefore, when Shimon pays back cash to Reuven's children, he cannot collect it from them as repayment for Reuven's debt to him because it will not retroactively become their father's. Even though the Mishnah says that when someone uses Chametz as collateral for a loan, when the debt goes unpaid and he collects the Chametz instead, it *does* belong to him retroactively, that is only because it existed at the time of the original loan and was set aside at the time of the loan for that purpose. Therefore it can become the lender's property retroactively. (M. Kornfeld)


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