Daf Yomi

For the week ending 14 September 2002 / 8 Tishri 5763

#59 - Bava Batra 170-176

by Rabbi Mendel Weinbach zt'l
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A Source for Guarantees

When the brothers of Yosef tried to convince their father Yaakov to let them take Binyamin with them to Egypt as they had been ordered to do by the Egyptian potentate (who, unbeknownst to them, was really Yosef), they allayed his fears for the safety of this youngest son by guaranteeing his return.

"Reuven said to his father: give him into my hand and I shall return him to you. " (Bereishet 42:37)

"Yehuda said to his father Yisrael (Yaakov) Send the youth with me I shall be a guarantor for him; you can demand from me his return." (ibid. 43:8-9)

Rabbi Huna attempted to find in Yehudas statement a Torah source for someone verbally guaranteeing the payment of a loan extended to a borrower becoming responsible for such payment even though no formal transaction was made to finalize his commitment. This was challenged by Rabbi Chisda who pointed out that Yehuda was not an ordinary guarantor, but rather one who had taken upon himself a contractual obligation by asking for Binyamin to be given into his custody, which is much more binding than an ordinary guarantee. It is therefore left to Rabbi Yitzchak to cite sources from Mishlei as a basis for even an ordinary guarantee to be binding.

The problem which arises in regard to Rabbi Chisdas challenge is that we do not find in the statement of Yehuda any mention of a request that Binyamin be given into his custody. This term appears only in the earlier statement of Reuven.

Maharsha resolves this by pointing out that it is unlikely that after Yaakov refused Reuvens offer of a contractual guarantee that Yehuda would dare to offer only an ordinary guarantee. Although the Torah does not explicitly mention the term "give him into my hand" by Yehuda we must infer that it was included in his guarantee just as it was in that of Reuven.

The Sheiltot on Parshat Miketz, quoted in the Mesorat Hashas footnotes of Rabbi Yeshaya Pik, quotes a different text for our gemara. Rabbi Chisdas challenge was from the opening words of Yehuda "Send the youth with me", which established him as the borrower of Binyamin rather than a mere guarantor, and no proof can be drawn from the obligation he thus incurred to the rule of an ordinary guarantor.

Bava Batra 173b

A Source for Mortgages

When a man borrows money his property becomes mortgaged to the lender, and if he fails to repay the loan this property can be confiscated as payment. If the borrower sold the mortgaged property it can only be confiscated from the buyer if the loan was recorded in a document but not if it was merely a verbal commitment to repay.

Although there is a consensus between the Sages Ulla and Rabbah on this point in contrast to the opinion of other Sages that the mortgage can be exercised on sold land even on a verbal loan their reasons are not the same. Ullas view is that according to Torah law the mortgage applies to both documented and verbal loans. The Sages, however, decreed that it does not apply to verbal loans, in order to protect buyers who have no way of knowing that the property is mortgaged, something they are capable of hearing about once it was documented. Rabbahs position is that according to Torah law there is never any mortgage on property that has been sold. The Sages, however, decreed that the lender can confiscate property to pay a documented loan in order not to discourage people from lending money for fear that they will have no property to collect from.

The dispute of these two Sages revolves around the interpretation of a passage in the Torah dealing with the lenders attempt to acquire property from the borrower to secure the loan.

"When you have any sort of monetary claim against another do not enter his home to take your security. Stand outside and the man who owes you money will bring this security out to you." (Devarim 24:10-11)

Ulla interpreted this as a description of the collection process, and the term avot literally translated as security here refers to property collected for payment on the basis of it being mortgaged. Rabbah, however, interprets it, as Rashbam points out, to mean the property seized by an agent of the court when the borrower refuses to repay his loan as a means of coercing him to honor his commitment. The Torah prohibits both the lender and the courts agent to enter the home of the borrower to seize an item for security. Both of them must wait outside but the courts agent can forcibly seize the security and transfer it to the lender while the lender himself can only acquire the security from the borrower with his consent.

Bava Batra 175b

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