Bava Kamma 8a

[Both] this [braita] and that [braita] - The Gemara quotes a Braita that says: if a person owned intermediate and poor quality fields, the victim of his damages and his creditor collect from the intermediate-quality. If he owes a k’suboh it is paid from the poorest- quality. In a second Braita with the same circumstances, a different formula is given. The victim of damages collects from the medium-quality. The creditor and the marriage contact are paid from the poorest-quality fields. Debtor has intermediate and poor-quality fields: Braita A Medium quality: Damages Creditor Poorest Quality: K’suboh Braita B Medium quality: Damages Poorest quality: Creditor K’suboh The Gemara offers four ways of reconciling this contradiction. Our Tosafot will be focusing on the second way. 1) Both Braitas hold that we determine finest, medium and poorest qualities according to the damager’s fields. Braita A is discussing a situation where at the time of the loan the debtor owned even finer fields. Since he owned finer fields, the debt at the outset was payable from the medium-quality fields. Even after the finer fields were sold, and his intermediate quality becomes his finest, the debt must be paid from what is now his finest because initially a lien was established on those fields. In Braita B, there never were any finer fields. The medium-quality fields are his best and the creditor is not entitled to collect from the debtor’s best. He must therefore collect from the poorest fields. 2) In both Braita A and Braita B, the debtor did not have finer fields at the time of the loan which were subsequently sold. Both Braita A and Braita B hold that the quality of the field is measured by world standards. Braita A is speaking about where his intermediate- quality is equal to the world’s intermediate quality and he pays his creditor and damages from the medium-quality. Braita B is speaking about where his medium-quality is equal to the finest quality by world standards. The creditor is not entitled to the finest fields, so he must accept payment from the poorest. The damages are of course paid from the finest. It is this second answer that our Tosafot will be discussing. 3) Both Braitas are speaking of where the debtor’s medium quality is equal to the world’s medium-quality. Braita A holds that payment is made according to world standards and therefore the creditor is paid with medium-quality fields even though they are the finest of the debtor. Braita B holds that payment is made according to the debtor’s fields. Since the field in question is the debtor’s best the creditor who is not entitled to the finest must collect from the poorest. 4) Ulo says in Chapter Haneezokin that by Torah law the creditor can collect only from the poorest. The Rabonon were concerned that potential lenders would be discouraged by the fact that they could only collect from the poorest fields and instituted a rabbinic law allowing them to collect from the intermediate quality fields. Braita A subscribes to Ulo’s ruling while Braita B rejects it. Rashi holds that he rejects Ulo’s ruling altogether and holds that there is no rabbinic law that creditor’s may collect from the intermediate- quality fields. Tosafot disagrees with Rashi’s understanding and hold that in general he agrees with Ulo, it is only in limited circumstances that he disagrees with Ulo. This is our text of the Gemara’s second solution: Both Braita A and Braita B are speaking of where the owner did not have finer fields that were later sold. Braita B is speaking about when his intermediate quality is equal to the world’s finest. Since a creditor is not entitled to the finest, he can now be paid with the poorest. Braita A is speaking of when his medium quality is not equal to the world’s finest. Since they are not equal to the worlds finest they are classified as medium-quality and the creditor is entitled to be paid from the intermediate-quality. Although the Gemara introduced this solution with the explanation that in both Braitas the debtor did not have any finer fields that were sold, there is a major difference between the circumstances of Braita A as opposed to Braita B, as Tosafot will now explain. And that which the Gemara said that both Braita A and Braita B are speaking of when he did not have finer fields that had been sold, the Gemara does not mean to say that both Braitas are speaking of where he did not have any finer fields at all, for if that were so, in Braita B which is speaking of where his middle quality is equal to the world’s finest, why are they called middle-quality? They are his finest, since you are assuming that he never had any better fields and they are the finest by world standards. Why are they referred to as middle-quality? Rather, this is what the Gemara means, both Braita A and Braita B are speaking of where he did not have finer fields that were sold, what this means is: that they are not speaking of where he had finer qualities that were sold, but one Braita, Braita A, is speaking of when he never had any finer fields at all. His finest is equal to the world’s middle-quality and therefore the creditor is paid from his finest which is equal to the world’s middle-quality. And Braita B is speaking of when he had finer fields and still has them. His middle-quality is equal to the worlds finest and they cannot be collected by a creditor. He must collect from the poorest quality. They are referred to as middle-quality because he owns even finer fields and they are in fact, his middle quality. According to this explanation, we need not say that either of the Braitas is speaking of when a field was sold. In Braita A he never had any finer fields. In Braita B he had finer fields and still has them. Nothing was sold in either Braita. And both Braitas hold that the qualities of fields are determined by world standards. That is why in Braita A the debtor pays with what is middle-quality according to world standards, even though they are his own finest. In Braita B the debtor pays with his own poorest, since his own middle-quality is equal to the world’s finest.

And if you wish, say [both] this [baraita] and that [braita concern cases where the borrower] did not have superior-quality [land] and sell it. This Tosafot is discussing the third way of reconciling the contradiction between the two Braitas. See previous Tosafot for an explanation of this solution. There is an alternative text for this third solution. Instead of reading that the debtor’s medium-quality is equal to the world’s medium- quality, that text reads that the debtor’s medium-quality is equal to the world’s finest quality. Tosafot rejects that text, as he will now explain. We do not have the text that in both Braitas the debtor’s middle-quality is equal to the world’s finest quality. For since in this third solution these Braitas are speaking of where the debtor had no finer fields, why are the fields he has called medium-quality fields since according to this text they are the debtor’s finest and the world’s finest? And another reason to reject this text is, for if it were so, that his intermediate-quality is equal to the world’s finest and we were to assume that the debtor did have finer fields which is why the fields under discussion are referred to as intermediate-quality, how can we make sense of Braita A that says that the victim of damages and the creditor are paid from the intermediate-quality. This difficulty is compelling both according to the one who says qualities are determined according to the debtor’s properties, and according to the one who says that qualities are determined by world standards. According to the one who says qualities are determined by the debtor’s property, the victim of damages should collect from the finest and the creditor from the debtor’s intermediate- quality. According to the one who holds that qualities are determined by world standards, the victim of damages should collect from the damager’s medium-quality, which is equal to the world’s finest and the creditor should collect from the debtor’s poorest quality because he is not entitled to the finest by world standards.

What [would] a person typically bring out? The most inferior of his utensils. Ulo is proving that the creditor is paid with the poorest quality since the Torah says that “the man to whom you lend shall bring out the security to you”. That “man” the borrower, given the choice will bring out the least of his utensils. The Torah is giving that “man” the right to pay with that which he sees fit; obviously he will choose the poorest. Tosafot points out that there is another person involved in the process, the court emissary. Even though it is the court emissary who brings out the security to the lender, the court emissary only brought out to the lender that which the borrower gave him. The decision of what to give as security remained with the borrower, who would obviously choose the least valuable of his utensils.

To bring out the most inferior of his utensils - The debtor’s right to bring out the least of his utensils is presented as proof that the creditor collects his debt from the poorest by Torah law. The supposition is that the least of the utensils is by definition not the finest. This contradicts what we have learned earlier. And if you ask: Even the least of utensils is “the finest” as the Gemara said earlier (Bava Kamma 7b), all movable items are the finest since they can be transported to where they are sought after. And we can answer: When one brings out utensils it is usual for him to bring out the least valuable and so too, when he brings land it is also usual that he brings the poorest. Since the Torah places the decision in the hands of the borrower, when he offers land he will offer the poorest which the lender must accept. It appears that the correct ruling is that qualities are designated according to the debtor’s property, for that is the opinion of R’ Nachmon in Ketubot 110a. As was pointed out at the end of Tosafot ה מר לית ליה תקנתא דעולא ' ד, in the fourth and final solution, according to both Braitas the designation of qualities is based on world standards. Tosafot felt the need to say that this is not the halachic ruling, rather we follow R’ Nachmon who holds that designation of qualities is based on the properties of the debtor.

[The other] sage is not of [the opinion that the ruling is in accordance with] the ordinance [cited] by Ulla. The Mishna in Haneezokin (48b) says that a creditor collects his debt from intermediate-quality fields. In our Gemara Ulo teaches us that by Torah law the creditor should collect only from the poorest quality fields. The Sages felt that this would have a negative impact on a borrower’s ability to obtain a loan. The potential lenders would not want to give a loan if their right to collect their debt was limited to the poorest quality. They therefore legislated that a creditor can collect from medium-quality fields. Why did they not allow a creditor to collect from the finest fields? The Gemara in Haneezokin (49b) answers that question. They felt that an unscrupulous individual would try to take advantage of an unfortunate person who was in need of cash. The lender would offer the unfortunate borrower a loan with the hope that he would not be able to pay the loan and thus the lender would take possession of the finest fields of the borrower. However, since a creditor could collect from the medium- quality, the honest lender would not be discouraged from offering a loan to a person in need of one. Our Gemara says that the Braita B that says that when a debtor has only intermediate and poor-quality fields the creditor collects from the poorest quality does not hold of Ulo’s rule. Rashi says that he does not hold like the Mishna in Haneezokin and in all cases a creditor collects only from the poorest, even when the debtor owns all three qualities of fields. Tosafot disagrees with Rashi as he will now explain. The Gemara’s statement that this Braita does not hold of Ulo’s rule was said specifically where the debtor has no finer fields than the medium- quality; in that case these medium-quality fields that he does have are the debtor’s finest. This can be seen from the Braita’s mentioning that the debtor owned only medium and poorest. It is in this case that the Braita rules the creditor collects from the poorest. This implies that if the debtor owned finer quality fields the creditor does collect from the medium-quality. Tosafot understands that the Braita specifically set up this case of the debtor not owning any finer quality as one where the creditor must take the poorest quality. Where the debtor does own finer quality the creditor collects from the medium-quality fields. And this Braita holds that since the debtor only has medium and poorest quality, the reason mentioned in Haneezokin that a creditor does not collect from the finest is relevant to the situation of our Braita. The Gemara there says: For what reason does a creditor not collect from the finest? So that he should not gaze upon his neighbor’s beautiful field or beautiful apartment and say: I will hasten and lend him money so that I will collect it, the beautiful field or apartment as payment of my loan. This concern is mentioned there as the reason the creditor does not collect from the finest. Braita B holds that this concern is relevant even where the borrower’s finest field is not the finest by world standards. The creditor cannot collect from the borrower’s finest and must therefore collect only from the borrower’s poorest. Braita A holds that this concern is relevant only where the borrower’s finest are finest by world standards as well, not when they happen to be this borrower’s finest but not the finest by world standards. Since that concern does not apply here, the creditor can collect from the intermediate-quality fields; even though they are the creditor’s finest. According to this fourth solution, both Braitas obviously hold that the designation of qualities is measured by world standards.

All [the buyers] replace the [land’s prior] owner - The purchasers of the fields assume the responsibilities of the original owner. The purchaser of the finest field will pay the victim of damages. The purchaser of the medium-quality will pay the creditor and the purchaser of the poorest quality will pay the k’suboh. It is clear that the victim of damages will definitely be able to collect from a field that the damager sold. Tosafot examines this ruling in view of the general rules of collecting from property that was sold. And if you ask: Damages are equivalent to a loan that is not documented, since the obligation is not written in a document and a loan that is not documented cannot be collected from property that was sold by the borrower? Why is our Gemara certain that the victim of damages can collect from property that the damager sold? And we can answer: That when they stood at a Din Torah and the obligation to pay was established by the court, it is equivalent to a documented loan and one is paid from property that the borrower sold, as the Gemara says in HaGozail basro (Bava Kamma 112) and in some other places. Alternatively, damages are a loan that is written in the Torah, which is equivalent to being written in a document and the purchasers of the property are liable to pay. (See Kidushin 13b).

[If he] does not have [they] collect from the previous [buyer] - When a debtor sells some of his property, the rule is that we do not collect from property that has been sold when there is unsold property available from which to collect the debt, even if that unsold property is of the poorest quality. Thus the law that the victim of damages collects from the finest and the creditor from the medium quality is circumvented by the sale of those properties to the first and second purchasers. Subsequently, if and when the remaining property is collected to settle a debt, even if that happens after the sale of such property to a third purchaser, the order to be followed when settling the debts is not based on the qualities but on the dates of the sale of the properties. The last sold is the first to be collected and the first sold is the last to be collected. We must also take into account the dates of the obligations. The earliest obligation is collected first and the last obligation is collected last, even though this may be to the detriment of the earliest obligation as Tosafot will now explain. Rivo says: That if they, the victim of damages, the creditor and the woman collecting her k’suboh, all come at once to collect what is owed to them, whoever’s document precedes the others collects from the last purchaser first even if this will be to his disadvantage. If the victim of damages was the earliest, he was damaged on the earliest date; he collects from the last purchaser even if that property happens to be the poorest. The rule that one collects from the last purchaser overrides the victim’s right to collect from the finest. And if the creditor comes after the victim of damages, for example, the date of his loan precedes the date of the k’suboh; he too, collects from the last purchaser. And if he, the last purchaser, does not have any more of the land that he purchased from the debtor, he, the creditor, collects from the preceding purchaser, even if the land the second purchaser has is from the finest of the debtor’s property. Ordinarily the creditor collects from the medium-quality. In this situation we are following the order that the various debts came into existence. That order takes precedence over the rule that the creditor receives payment from the intermediate-quality since that rule has been circumvented by the debtor selling the medium-quality before selling the poorest property. And the woman, who is collecting her k’suboh and happens to be the latest obligation of the three, collects from the very first purchaser even if that property is the finest of the finest. Time line Obligations: Ador 1- damages Ador 2- debt Ador 3- k’suboh – marriage contract Sale of property: Ador 4- finest of the finest Ador 5- finest Ador 6- inferior The damages victim of Ador 1 is the first obligation. He is paid from the field sold last on Ador 6, even though it is inferior-quality. The creditor whose loan is dated Ador 2 is paid from the balance of the inferior if there is any left and if there is nothing left he is paid from the field sold on Ador 5, even though it is the finest. The marriage contract which was dated Ador 3 is paid from the finest if there is any remaining after satisfying the debt. If not, she is paid from the first field sold on Ador 4, even though it is the finest of the finest. See Rosh who adds that the victim of damages may make a private deal with the first purchaser who has the finest property. The first purchaser may then say I give up my right to compel the victim of damages to collect from the last purchaser and will pay him from the finest properties that I purchased from the debtor. This is not considered a violation of the rights of the debtor and the k’suboh. The same may be true of the creditor who can strike a deal with the holder of the medium properties.

Where it is possible to say [that the sale to] one of them preceded [the other sales]. It appears that Rashi understood that the words דאיכא למימר mean that an argument can be made that since one document was written and given before the other, we should consider the first purchaser as the first and his property should be collected last and we should not treat all of the purchasers equally even though all three transactions took place on one day. The Gemara’s conclusion is that since they are all written in one day the effective date of each of these documents is the end of that day. It doesn't really matter that one of them was written earlier than the others. They are in reality all effective at the same point in time, the end of the day on which they were written. Tosafot seems to translate the words דאיכא למימר as ‘it can be said’. This implies that there is an element of doubt. It can be said that one was given before the other and it can be said that one was not given before the other. Tosafot finds this interpretation problematic. If we are speaking in terms of an actual time that the seller handed the documents to the buyers, then one definitely was given before the other. How can we entertain the possibility that one was not given before the other? (It is highly unlikely that the seller handed two documents to two people at precisely the exact same moment.) Tosafot explains that converse of “it can be said that one preceded the other” is not that “it can be said that the two documents were given simultaneously”, but rather, “that we are sure that one preceded the other”. This happens in Y’rusholayim where it was the custom to write not only the date but also the time of day that the document was written. The reason that there is a doubt about which transaction occurred first in places other than Y’rusholayim is because we only write the hour of the day in Y’rusholayim. In Y’rusholayim there is no doubt. Since we write the hour of the transaction in the document we are sure that one document was given before the other.

It needs [to ask about a situation where] he sold to one [purchaser all of the fields] in one day. When the Gemara says: now if he sold three qualities to three people, they all take the place of the owner – and must pay each of the creditors according to the qualities that they purchased, i.e. the damages are paid from the finest, the creditor from the middle-quality and the k’suboh from the inferior fields, then certainly when there is only one purchaser he must pay each of the creditors with the quality that they deserve, it seems that there is no conceivable reason that would dictate that when there is a single purchaser he might be able to avoid paying the damages victim from his due – the finest. Tosafot holds that ultimately at the conclusion of the Gemara, this is not necessarily true. In a few moments the Gemara introduces a new dynamic into the claims and counter-claims between the claimants and the purchaser of the debtor’s property. When the purchaser who is in possession of all three qualities purchased the finest quality last, it would seem that all the claimants can collect from the finest since that was the last one sold by the debtor. The Gemara says that the purchaser can argue as follows: If each of you is willing to accept the quality that is due to you, fine. If not, I will return the document of the poorest quality to the original owner and you will all have to collect from the poorest quality. With this claim the purchaser can avoid paying all of the debts with the finest property. Subsequently, the Gemara argues that he should not even pay the damages victim with the finest because he can threaten to return the inferior quality to the debtor/seller and compel him to accept the inferior quality. Tosafot will now argue that when the sole purchaser purchased all of the fields on one day he too should also be able to avoid paying the damages victim with the finest quality, because he can threaten that he will return the document of sale of the inferior fields to the owner and they will be forced to accept the inferior quality. Thus he should be able to work out a compromise with the damages victim and pay him with middle-quality. It seems from the Gemara’s argument that precisely because one purchaser bought all of the fields, he can make this threat and is in a stronger position than if the three qualities were purchased by three individuals. This contradicts the Gemara’s present position that when one person buys all of the fields, he must certainly pay according to qualities and not according to the order of the sales. At this point the Gemara did not think of the explanation that a buyer may threaten the victim of damages who is seeking to be paid from the finest as follows: if you will be silent and accept the medium-quality that I will give you, fine, but if you insist on the finest, I will return the document of the sale of the poorest quality to the original owner and you will be forced to accept the poorest quality as payment of your damages. Eventually the Gemara presents this argument as a viable claim against the victim of damages who is seeking to collect from the finest property. If the Gemara had been aware of this argument, the Gemara could not have said that when all three fields are sold to one buyer, that buyer must certainly pay each of the claimants with the quality that he is due, for he could claim “if you will be silent etc.” One might argue: Perhaps this claim is valid only when there are three separate documents for each of the three qualities, but if there is only one document for all three, the buyer cannot threaten to return the document of the poorest quality since they are all on one document? Tosafot explains: For even when all three qualities were written in one document, the buyer can suppress that document and return the poorest quality to the seller as if he had never purchased it at all.

If you were silent, etc., but if not, I will return the bill [of sale] of the inferior quality [land] to its [previous] owner. The circumstances we are presently dealing with in the Gemara are where the purchaser bought the finest quality of the debtor/seller last. According to the general rule governing the collection from a debtor who sold his property, all claimants can collect from the very last field that was sold by the seller/debtor. The Braita is telling us that the general rule can be overridden by the purchaser who can threaten to return the document of the poorest quality back to the debtor/seller. If he should do that they would all be forced to collect from the poorest. He agrees not to take advantage of that option if they will each be satisfied with their original right. The victim of damages will collect from the finest, the creditor from the medium quality and the k’suboh from the poorest. This is a bit of an over-simplification. Actually the three claimants are not one group of collectors that must submit to collective bargaining. Each one has his own claim and the debtor has to deal with each one of them individually. Tosafot will now explain how each of the claimants is dealt with. Since this is merely a threat why does the k’suboh have to surrender her right to collect the finest because of the threat? According to the general rule that one collects from the last property sold by the debtor she has been upgraded from the poorest to the finest. Why should she submit to accepting the poorest in face of the purchaser’s threat? She should say “when you give back the document”; I will accept the poorest from the seller/debtor. There may be a reason that the purchaser really does not want to return the document to the seller/debtor. The woman collecting her k’suboh should have the right to force him to make that move. After all, he may back down. Even though a woman collecting her k’suboh would in any case receive the poorest, and the purchaser is not offering her any upgrade to entice her to accept his offer, even so, she cannot say “when you will return the document I will accept the poorest” in order to force him to improve her position, because he is not curtailing her rights. Ultimately, the Rabonon said that she could collect her k’suboh from the poorest and he is not offering her anything less than that. As long as he is not infringing on her original right, she must accept his offer. It is precisely for this reason that the purchaser cannot force the creditor to accept a downgrade. However, as far as a creditor is concerned it cannot be said that he must accept the poorest instead of the medium-quality because of the claim of “if you will be silent etc.”, since the purchaser is curtailing his rights to collect from the medium-quality, the creditor can say to the purchaser “when you will return the document to the seller/debtor I will accept the poorest from him”. For now you are also only offering to give me from the poorest which is a downgrade. Why should I settle? Let us see if you will really return the document to the seller/debtor. We see that when the purchaser attempts to downgrade the position of the claimant without offering anything in return, the claimant can argue: when you will return the document to the debtor/seller I will accept the poorest from him. The Gemara will soon ask that the purchaser should be able to downgrade the victim of damages with the threat of “if you will be silent and accept medium quality, fine. If not I will return the document of the poorest to the debtor/seller and you will be forced to collect from the poorest. The Gemara does not ask that the purchaser should attempt to downgrade the creditor as well with the same threat. It is for this reason, that the purchaser cannot downgrade the creditor from his right to collect from the medium-quality without offering him something in return, that the Gemara soon asks that the purchaser should be able to downgrade the victim of damages, only from the case of damages where the purchaser is willing to at least give him medium-quality, so the victim has some reason to compromise and accept the medium instead of being forced to accept the poorest. The Gemara does not ask about the creditor as Rashi explained that he should be compelled to accept the poorest. Since he is not being offered any more than the poorest, he has no reason to compromise and accept the offer and he can say “when you return the document of the poorest quality to the seller/debtor, I will accept the poorest from him”.