Bava Kamma 8b

With [a case of] orphans, who are not subject to [an obligation to] repay. Tosafot holds that the orphans that the Gemara is discussing are adults. We know that adult orphans do have to pay their father’s debts from the property they inherit from him. Why does the Gemara refer to them as “orphans who are not responsible to pay”? Even though the purchaser is returning land to the orphans and a creditor can collect from land that the orphans inherited from their father, the case of our Gemara is comparable to orphans who purchased land after their father’s death. Even though the land once belonged to their father a creditor cannot collect from those lands since this is not land that they inherited from their father. Only land that they inherited from their father is mortgaged for their father’s debts, not land that they purchased after his death. This distinction is true despite what we have learned in perek Yesh Nochalin (Bava Batra 125a). And even though, when they collected land for a debt owed to their father we say in perek Yesh Nochalin (B”B 125a) that a creditor can collect that land from them. That is because the collected property is part of their father’s estate. They inherited the estate from him and it is mortgaged to his debts. When orphans buy property after their father’s death, that property has nothing to do with their father’s estate and cannot be taken from them to satisfy his debts.

[If] he [so] desires, he collects from this [one, and if] he [so] desires, he collects from that [one]. Reuven sold all his fields to Shimon. Shimon sold one of those fields to Levi. A creditor of Reuven wants to collect the money that Reuven owes him. Reuven has no other assets, all the sold fields are mortgaged to the debt. Rovo says that the creditor can collect his debt from Shimon or Levi. We must keep in mind that when Levi purchased the field from Shimon, he left Shimon with sufficient property to cover the debt to the creditor. Why then should the creditor be allowed to collect from Levi? And even though we say that one may not collect from sold properties where there are unsold properties available, even if the unsold property is of the poorest quality. We should view the property that Levi bought as sold property and the property remaining with Shimon as unsold and Shimon should pay the creditor from the unsold property. Here, in this case, it is different. For all the properties are actually sold. If Reuven had unsold property, he would have to pay with that property. That property is viewed as unsold because the person who owes the money to the creditor owns those properties. A buyer may claim “I do not have to pay the creditor because I left the debtor with sufficient property to pay his debt”. This is true when a buyer leaves sufficient property in the hands of the person who actually owes the money to the creditor. In our case, Reuven has no more property. The debt must be satisfied from sold property. Levi cannot say “I left sufficient property to cover the debt with the person who owes the creditor”. Shimon does not owe the creditor any money at all. They both happen to be in possession of property that is mortgaged to the debt. Shimon is not a debtor, Reuven is the debtor. Those properties are both sold properties and are equally mortgaged to the debt. The creditor may therefore collect from whichever property he desires.

But [if] he purchased superior-quality and inferior-quality [land] - The Gemara says that if Levi purchased the finest or the poorest quality from Shimon he can say to the creditor: you must collect from Shimon. I went to the trouble of purchasing the qualities that are usually not suitable for a creditor and therefore you cannot collect from me. Thus the Gemara has now introduced a new claim that the second purchaser can use to protect the property that he bought from the first purchaser, from being collected by the creditor. We already know that Levi can claim; I left property with Shimon from which you could collect. (In the next Tosafot we will clarify the soundness of this claim.) There are now two possible claims that Levi; the second purchaser may use to protect his interests: A) I left sufficient property with Shimon from which you could collect your debt. B) I went to the trouble of purchasing the finest or the poorest, which are usually not suitable for a creditor. We must examine the circumstances under which claim A) I left property with Shimon from which you could collect, is not effective and claim B) is needed and why. There are three possible scenarios where Levi purchased the finest or the inferior qualities and he is trying to prevent the creditor from collecting his property: a) He purchased the finest and left Shimon with the inferior quality. b) He purchased the poorest and left Shimon with the finest. c) He purchased the finest or the poorest and left Shimon with middle quality. In the very next case the Gemara discusses Levi, who purchased some of the middle-quality fields and left Shimon with enough to cover the debt. The Gemara concludes that Levi can argue to the creditor: I especially left Shimon with enough middle-quality to cover the debt and therefore you cannot collect from the middle-quality that I purchased. (In the next Tosafot the exact logic of this claim will be explained in depth.) It would seem that in scenario c) the same defense should apply. If Levi purchased the finest or poorest and left Shimon with the middle-quality he should be able to claim: I left you sufficient middle-quality from which you can collect your debt and thus you cannot collect from the finest or poorest that I purchased. Why does the Gemara introduce a new claim: I specifically avoided the quality that you would collect? The claim I left you sufficient land from which you could collect your debt should suffice. It seems that the Gemara must be discussing scenario a) or b), where no middle quality was left with Shimon. Tosafot explains that this is not necessarily so. It appears that the Gemara may be aptly speaking of even when Levi left medium-quality that a creditor is entitled to collect from Shimon. It would seem that the new claim B) “I was careful to buy the finest or poorest which is not usually collected by a creditor” is not necessary. The claim A) “I left Shimon with property that you could collect” should be sufficient. Even so, claim B) that I went through the trouble of purchasing land that is not suitable for you, is needed. For Levi cannot say to the creditor claim A) I left you sufficient land from which you could collect your debt, as the Gemara soon says about Levi who left Shimon with medium quality, that is equal in quality to the land that Levi purchased. There, where Levi and Shimon now have equal parcels of medium quality land, claim A) is valid. Had the property not been purchased by Levi and remained in Shimon’s possession, Shimon could have dictated which medium-quality parcel the creditor collects. (See next Tosafot for the explanation of this claim). Levi, as a purchaser from Shimon, has every right that Shimon had, so Levi can dictate that the creditor take the medium parcel that he left with Shimon. This is true when Shimon and Levi each have equal parcels of medium quality land. However, when Levi purchased only the poorest and Shimon is left with only medium quality, the situation is radically altered, because Levi has something that Shimon does not have and the creditor may have had the right to demand the parcel that Levi purchased. For perhaps the creditor desires a larger portion of the poorest land, more than a smaller portion of the medium, and against Shimon’s will the creditor could have demanded a bit more of the poorest as we said earlier (7b). When considering the proposal that when a creditor wants to be paid with the poorest quality, the debtor could demand that the land be calculated at the higher Nison prices. Rav Acha the son of Rav Eeka, rejecting that proposal said, if so, that you want to force the creditor to accept the poorest land at the later Nison prices; you are locking the door in the face of borrowers. They will find it difficult to obtain a loan, because you are discouraging the potential lender by limiting the manner in which he can collect his debt. The creditor who wants the poorer property that Levi purchased could have demanded it and claim A) would not have been a proper defense, since the two parcels of land are not equal. Claim B) that I went to the trouble of purchasing land that is not suitable for a creditor is a valid defense for Levi. Even though in this particular situation his claim is not really accurate, because the creditor does in fact want the poorer land that Levi purchased, but since in most cases Levi’s choice of purchasing the poorest is a reasonable choice, that usually protects the creditor’s interests since most creditors do prefer to be paid with medium quality he need not give up the poorest land to the creditor. Tosafot has shown us that the claim “I went to the trouble of purchasing land that is usually not suitable for a creditor” is needed when the second purchaser, Levi, purchased the poorest and left Shimon with the medium- quality that the creditor usually collects. What about a reverse situation? When Levi purchased the finest property and left medium and/or poor- quality with Shimon, is claim B) needed? Tosafot holds it is not needed. And claim B) that I went to the trouble of purchasing property that is not suitable for you is needed only when Levi bought the poorest land which the creditor could demand, but if Levi purchased the finest land which the creditor could not demand and left Shimon with the poorest and medium-quality, this (claim B) is not needed. The creditor would like to collect the finest land that Levi purchased, but he really has no claim to that quality. For just as Shimon could have diverted the creditor to the medium and poor-quality, when he demands the finest, so too, Levi who is in possession of the finest land can divert the creditor to the poorest quality. Levi has every right that Shimon would have had if the creditor came to collect from Shimon. As we have just learned in the Gemara, what has the first purchaser, Shimon, sold to the second purchaser, Levi, any beneficial claim that is in his power to claim. So, just as Shimon could divert the creditor from the finest, so too, Levi can also divert the creditor from the finest. Claim B) is not needed in this case.

He could say to [the creditor] - I left a place for you. Reuven the debtor sold his fields to Shimon, the first purchaser. Shimon sold some of the medium quality fields to Levi, the second purchaser. When Reuven’s creditor wants to collect Levi’s fields, Levi can protest. The Gemara says that he can argue; I left you a place (property) with Shimon, the medium-quality field that I did not purchase, from which you can collect you debt. See ד"ה רצה מזה גובה ומזה גובה תוס' for a better understanding of the concepts that will be discussed in this Tosafot. This phrase, I left you a place from which you could collect your debt, is not precise. For it is only possible to use this term, when referring to property which was left with an original owner and not when referring to property left with the first purchaser. As we have seen in ד"ה רצה מזה גובה ומזה גובה תוס' the obligation to pay a debt is solely upon the debtor. When one purchases property from the debtor and leaves him with any kind of property even the poorest, one can say I left you a place from which to collect your debt. However, when Levi purchases from Shimon, a first buyer who does not owe anything to the creditor, Levi cannot say to the creditor I left you a place from which you could collect your debt because Shimon is not any more liable to pay the debt than Levi. Shimon and Levi are equally not liable to pay the debt. It is only because they happen to be in possession of land that was mortgaged for the debt that they have to pay. In this they are equal. Neither of them has a greater liability than the other. Levi cannot divert the creditor to Shimon based on Shimon’s greater liability because it is simply not true. If so, why can Levi divert the creditor to Shimon? The primary reason that Levi can force the creditor to collect from Shimon is only because of the reason mentioned earlier in the Gemara. What did the first purchaser sell to the second purchaser? He sold any beneficial claim that is in his power to claim. And he, Shimon, could have diverted the creditor to some other medium quality land. So too, Levi can divert the creditor to that very same land which is still in Shimon’s possession. However, if he did not leave Shimon with medium quality equal to what he purchased, he cannot divert the creditor to the poorest that remained with Shimon. For the first purchaser, Shimon could also not have diverted the creditor to the poorest. It is the creditor’s right to collect from the medium-quality. So too, Levi cannot force the creditor to collect from the poorest. For if we were to consider that the first purchaser, Shimon, may have claimed if you are silent and agree to accept the poorest, fine. If not I will return the document of the poorest land to the seller/debtor and you will have to collect the poorest from him. The creditor can say; go and return the document to the debtor/seller. Since he is being offered less than his minimal right, he can force the hand of the first purchaser and say; give it back. The purchaser may have reasons why he does not really want to give back the document to the seller/debtor.

The halakha is that Reuven [can] go and litigate with [his creditor] - Reuven sells a field to Shimon with a guarantee, which means that if the field is taken away from Shimon, either because Reuven did not own the field legally, or because it was mortgaged for Reuven’s debts, Reuven will repay Shimon for the loss of the field. If Reuven’s creditor attempts to collect the field from Shimon, Reuven may participate in the court proceedings as a defendant, even though he presently does not own the land. Since he will eventually have to repay Shimon if the land is taken away from him, Reuven is considered a principal. It seems from this ruling that there are claims that Reuven might claim that Shimon cannot or will not claim. Tosafot finds this very problematic. In view of the principal “we argue for the defendant” which means that the court considers every conceivable claim that the defendant can claim, Tosafot wants to know exactly what will be gained by allowing Reuven to participate in the case. There are two areas where there might be a difference if Reuven is allowed to participate as a principal: A) Claims and counter-claims. B) Permissible evidence by the testimony of witnesses. Tosafot will demonstrate that in both of these areas there is no difference whether Reuven is permitted to participate as a principal or not. First, as far as claims and counter-claims are concerned: And if you ask: what difference is there if we allow Reuven to participate in the court case as a principal. Anything that Reuven may have claimed we, the court, will claim for Shimon the purchaser’s benefit, for we will make any claim for the benefit of a purchaser, and also for the benefit of orphans who are very often unaware of the history of the property in question. The court steps in and acts in their behalf and presents any argument that the seller could have possibly claimed to protect the property from the creditor. For example, the court will claim that the loan in the document may have been paid, or perhaps the document has been forged and we require witnesses to verify the signatures on the document. For if we would not take these precautions to protect a buyer of property or orphans, you have not allowed a problem-free existence for any people. Honest individuals who are not particularly well versed in legal tactics will constantly be harassed by unscrupulous people trying to take advantage of them. The court must act as a defense lawyer for those who are incapable of defending themselves and challenge all claims by the plaintiffs even when the defendant does not challenge them himself, to assure that justice is served. Tosafot offers additional proof that the courts challenge the plaintiffs and exhaust every avenue of defense for the defendants. And in perek Get Poshut (Bava Batra 174b) it is also evident that the court claims that the documentation of a plaintiff is false and forces him to verify that the document is in fact authentic. The Gemara discusses a person who on his deathbed said: there are one hundred zuz in my possession that belongs to Ploni. If he then said: give them to him, we give them to him. If he did not say: give them to him we do not give them to him. And the Gemara there sets up the circumstance of this case, where Ploni is holding a document that confirms that one hundred zuz is owed to him. Despite the fact that Ploni is holding a document, if he said: give the money to him, he has validated the document. If he did not say: give the money to him, he has not validated the document and we do not give Ploni the money. This ruling that unless the document is validated we do not pay the creditor who is in possession of a document, implies that we claim for the benefit of orphans that the document presented against them is forged. Otherwise, there would be no need to validate the document. In the first perek of Bava Metzia (14a ד"ה דינא) I have discussed this at length. Tosafot has shown that whenever a defendant is in a position where he is not likely to know how to defend himself properly, the court steps in and claims any possible claim that he himself may have claimed had he been aware of his rights. If so, why in our Gemara do we say that Reuven can participate in the court proceedings as a principal, what difference does it make? The court will argue any claim that Reuven may have argued. Second, Tosafot will now show that even as far as permissible witnesses are concerned, there is no difference whether we consider Reuven a principal or not: So too, one should not say that there will be a difference whether Reuven is a principal or not when the witnesses of the creditor are relatives of Reuven and are therefore disqualified if Reuven is a principal, and they are not related to Shimon, so the creditor can use them to testify against Shimon. This scenario is not a proper solution to our question, for they cannot testify against Shimon in any case, because if the field is taken away from Shimon, he will then go after Reuven who is their relative. Ultimately their testimony affects their relative Reuven, and it is therefore not acceptable as Tosafot will soon demonstrate. And so too, if Shimon has witnesses who will testify in his behalf and they are his relatives, they are disqualified from testifying even for Reuven, because there is a benefit for Shimon from their testimony that the property remains in his possession. Tosafot has presented his opinion that if Reuven or Shimon will in any way benefit from testimony of witnesses the witnesses may not be related to either Reuven or Shimon. Whether Reuven is a principal or not has no bearing on this matter. Tosafot will now prove his point. As is evident in the end of the first Perek of Makos (7a) in regard to the story of Ee’lo’o and Tuvyoh who were relatives of the guarantor, the Gemara there disqualifies them from testifying even for the proceedings between the debtor and the creditor, because the creditor will go to the guarantor to be paid if the borrower does not have the ability to pay. We see that even if the guarantor is not a principal at the court proceeding, his relatives cannot testify because ultimately he will be affected by their testimony. If so, that we make all claims for the benefit of the defendant and any witnesses that are related to Reuven cannot testify even if Reuven is not a principal, what difference is there if Reuven is allowed to participate in the court case as a principal or not? We can answer: That there would be a difference as far as the rule of “the last proof” is concerned. For example: when asked if he could defend himself against the claims that were made against him, Shimon said I have no witnesses and I have no proof and after some time he found proof or witnesses. Shimon can not present them to testify in his behalf, since he already said that he has no witnesses or proof (Sanhedrin 31a). However, if Reuven is a principal, Reuven who never said I do not have witnesses can bring them to testify in his behalf. Alternatively, there would be a difference if Reuven is considered a principal if for example Reuven claims I want to go to the Great Sanhedrin to try my case, which he has the right to do, and Shimon could not make the effort to do so as Reuven can. If we consider Reuven a principal he can demand a trial at the Great Sanhedrin. If we do not consider him a principal and Shimon is not in a position to make such a demand, the trial must take place in the local court. See Tosafot Bava Metzia 14a and Tosafot Ketubot 92b for other answers to Tosafot question.